OUTLINES OF INTERNATIONAL LAW WITH AN ACCOUNT OF ITS ORIGIN AND SOURCES AND OF ITS HISTORICAL DEVELOPMENT BY GEORGE B. DAVIS MAJOR AND JUDGE- ADVOCATE U.S.A. NEW YORK HARPER & BROTHERS, FRANKLIN SQUARE Copyright, 1887, by HARPER & BROTHERS. All rights reserved. PREFACE. IT has been my purpose in the preparation of this volume to provide a work sufficiently elementary in character to be within the reach of students and others who may desire to gain some knowledge of the general principles of International Law. It is intended to be used as a text-book, rather than as a book of formal reference. To that end the use of citations, and of terms technical to the law, has been avoided wherever it was possible to do so, and the effort has been made to express the fundamental principles of the science as concisely as possible and in the English language. Where quotations have been found necessary they have been acknowledged in the text, and the student will find, at the end of each chapter, a list of references to state papers, or to the works of writers of standard authority, where the subjects discussed in the text will be found treated at greater length and in more elabo- rate detail. WEST POINT, N. Y. 2210000 TABLE OF CONTENTS. List of Authorities Cited xix CHAPTER I. DEFINITION AND HISTORY. Of Law in General 1 Classification of Public Law 1 Municipal Law 1 International Law 1 International and Municipal Law Compared 2 History of the Science of International Law 3 The Oriental Monarchies 8 Greece 3 Rome 4 The International Law of the Middle Ages 4 Effects of the Revival of Commerce 5 Early Codes of Maritime Law 5 The ' ' Jugements of Oleron " . 5 The " Consolato del Mare " 6 The "Guidon de la Mar" 6 Other Early Codes 7 Comparison of the Sea Laws 7 Effects upon International Law of The Feudal System 8 The Institution of Chivalry 10 The Roman Church 11 The Church and the Emperor 11 (Ecumenical Councils 13 The Rise of the European Monarchies 14 The Influence of Grotius 15 The Sources of International Law 18 Treaties and Conventions 18 The Judgments of International Courts and Boards of Ar- bitration < . 19 The Diplomatic Correspondence of States 19 yj TABLE OF CONTENTS. PAGE The Roman Law 19 The Works of Text Writers 22 Decisions of Courts upon Questions of International Law . 23 The Municipal Law of States 24 General Histories, Histories of Important Epochs, Biogra- phies, etc 24 The Divine Law 24 Divisions of International Law 24 The Natural Law of Nations 25 The Positive Law of Nations 2o (a) The Customary Law of Nations 25 (J) The Conventional Law of Nations 25 The Parties to International Law 26 References 26 CHAPTER II. STATES AND THEIE ESSENTIAL ATTRIBUTES. Definition of a State 28 The Sovereignty of a State 28 The Government of a State 28 Classification of Governments . 29 Classification of Governmental Powers 30 Governments de facto and dejure . , 30 The Essential Attributes of Sovereignty 31 Sovereignty 31 Independence 31 Equality 31 Sovereign States 32 Dependent or Semi-sovereign States 32 Confederations 32 Rule for Determining the Strength of a Confederation . . 33 Right of a State to Change its Constitution and Laws . . 33 Sovereignty, how Acquired, how Lost 34 Territory 35 Definition of the Term 35 River Boundaries 35 What Constitutes the Territory of a State 36 Jurisdiction over Closed Seas 37 Rights of Ownership and Jurisdiction in the case of Straits 37 The Danish Sound Dues 38 Ship Canals 39 Jurisdiction over a Portion of the Coast Sea, the Marine League 40 Case of the Franconia . . .41 TABLE OF CONTENTS. yjj The High Seas *42 Freedom of the Seas 43 Claims to Exclusive Dominion 43 Right of River Navigation 44 Action of the Congress of Vienna 44 Cases of the Rhine, Main, Moselle, Neckar, Meuse, and Scheldt 44 Cases of the Elbe, Vistula, Weser, and Po 45 Case of the Douro 45 Case of the Danube 45 Case of the Mississippi 46 Case of the St. Lawrence 49 Servitudes 52 Origin and Definition of the Trm 52 Its Application in International Law 52 How Created and Terminated 53 Examples of Servitudes 54 The Right of Territorial Jurisdiction 54 Classification of Jurisdictional Powers 54 In Whom Vested 55 The Legislative Power 55 The Executive Power 56 The Judicial Power 56 Extra-territorial Jurisdiction of a State 57 Over the Officers and Crews of Ships of War 57 Over its Merchant Vessels on the High Seas 57 Over its Armies in the Field . . 59 Over Crimes Committed by its Subjects in Unoccupied Territory 59 Over the Crime of Piracy 59 The Principle of Exterritoriality 59 Origin and Definition of the Term 59 Application to Ships of War in Foreign Ports 60 Application to Armies in Transit 63 Application to the Person of a Sovereign, to his Retinue and Train, while Passing through, or Sojourning in, Foreign Territory 65 Application to Ambassadors, etc 67 Application to Consuls, and to Foreigners in Certain East- ern Countries 67 References 68 TABLE OF CONTENTS. CHAPTER III. PERFECT AND IMPERFECT RIGHTS. PAO , Perfect Rights 70 Classification of 70 The Right of Self-preservation 70 Duty of a State to Protect its Subjects 72 The Right of Reputation 73 The Enforcement of Treaty Stipulations 74 Duty of Non-interference 74 The Right of Interference 74 (a) To Assist a State in Suppressing an Insurrection or Rebellion 75 (J) Interference in Accordance with Treaty Stipula- tions 76 (c) In Self-defence 77 (d) Interference in Behalf of the Balance of Power . . 77 De Marten's Statement of the Principle of Balance of Power 80 Vattel's Rules 81 Senior's Limitation of the Right 81 (e) Interference in Behalf of Oppressed Populations . 82 The Duty of Mutual Respect 83 Forms of Mutual Courtesy 85 Maritime Ceremonial 87 Ceremonial in Foreign Ports 88 International Agreement as to Salutes 90 Observance of National Anniversaries 91 Ceremonial on Land 91 The Formalities of Diplomatic Intercourse 92 Imperfect Rights, or Moral Claims 92 The Duty of Humanity 93 The Duty of Comity 94 The Duty of Intercourse 94 (a) Interstate 94 (6) Commercial 95 CHAPTER IV. NATIONAL CHARACTER. National Character of an Individual, how Determined .... 98 Definition of the Terms Citizen and Subject 98 Classification of Citizens 99 Native-born Citizens. 99 Naturalized Citizens . 100 TABLE OF CONTENTS. JX PAOC Naturalization 100 Conditions of Naturalization 101 Heinrich's Case 102 Koszta's Case 103 Largomarsini's Case 105 Ungar's Case 106 Naturalization Treaties of the United States 107 Expatriation 108 Conditions of 108 Policy of States in the Matter of 109 Aliens and Domicile 110 History of the Treatment of Aliens 110 Definition of the Term 112 (a) Aliens, or Aliens Proper 112 (b) Domiciled Strangers 112 Legal Situation of Aliens 112 Domicile 116 Distinction between Citizenship and Domicile 117 Conditions of Domicile 118 Importance of the Rules of Domicile 121 References 1 121 CHAPTER V. EXTRADITION. The Right of Criminal Jurisdiction 123 Duty of a State as to Crimes Committed Abroad 123 Extradition by Comity and Treaty 124 Difference of View as to Criminal Jurisdiction 124 Definition of the Term Extradition 126 Methods of Extradition 126 (a) By Treaty 126 (b) In Accordance with Municipal Law 126 (c) By Comity 126 Extraditable Offences 126 Requisitions for Extradition, by Whom Made 127 Conditions of Extradition 127 Extradition Treaties of the United Slates 128 Interstate Extradition in the United States 129 References 131 CHAPTER VI. PRIVATE INTERNATIONAL LAW. Relations of States and Individuals at International Law . . 132 Definition of Private International Law 132 x TABLE OF CONTENTS. MM Practice of International Law Based on Comity or Consent. . 132 Origin of the Practice 133 Subjects Discussed in Private International Law 136 Limitations upon the Practice of Private International Law . 137 Foreign Judgments 138 Effect of 138 Conditions to be Fulfilled in Order that Effect may be Given to 138 Condition of Reciprocity 138 Why Produced before the Courts of a State 139 Practice of States in the Matter of 139 References 140 CHAPTER VII. THE EIGHT OF LEGATION. Origin of the Right . 141 The Right of Legation 142 Classification of Diplomatic Agents . . 143 Rank of Ambassadors . 144 Titles of Ambassadors 145 Manner of Sending and Receiving Ambassadors .... 146 Reception of Ambassadors 146 Duties of Ambassadors 147 Diplomatic Language 147 Functions of, how Suspended and Terminated 148 Privileges and Immunities of Ambassadors. ....... 149 Necessity of Immunities 149 The Principle of Exterritoriality 150 Immunity from Criminal Jurisdiction 1-50 Immunity from Civil Jurisdiction 151 Immunity of Hotel 152 Privilege of Religious "Worship 153 Exemption from Customs Dues 153 Consuls, their Duties and Privileges 154 Origin of the Consular Function , 154 The Duties of Consuls .'156 Classification of Consular Employees 157 Privileges and Immunities of Consuls 157 By whom Appointed 158 How Recognized in Foreign States 158 The Exequatur 158 Manner of Appointment in the United States 160 Consular Jurisdiction 161 Extent and Character of 162 TABLE OF CONTENTS. TAGS Jurisdiction of U. S. Consuls 162 References 164 CHAPTER VIII. TREATIES AND CONVENTIONS. Definition and Purpose 165 The Right of Making Treaties 165 Contracts and Agreements with Individuals 166 The Treaty-Making Power 166 Limitations upon the Treaty-Making Power 167 Conditions Essential to the Validity of Treaties 167 The Power of the Contracting Parties 167 The Consent of the Contracting Parties 168 Possibility of Execution 168 Binding Force of Treaties 169 Manner of Negotiating Treaties 169 Language Used 170 Form and Signature 171 Ratification of Treaties 172 Classification of Treaties 173 Transitory Agreements or Conventions 174 Permanent Treaties 174 Cartels . 174 Capitulations 174 Treaties of Alliance 175 Treaties of Guarantee 176 Reciprocity Treaties 178 Treaties, how Terminated 179 How Violated 179 Rules for Interpreting Treaties 180 Strict Interpretation 182 Liberal Interpretation 182 Terms Used 183 Protocol 188 Recez 183 Separate Articles 183 The Most Favored Nation Clause 183 References 184 CHAPTER IX. THE CONFLICT OP INTERNATIONAL EIGHTS. Causes of Conflict 186 Methods of Adjusting International Differences . ... . . 186 Amicable Adjustment 186 yji TABLE OF CONTENTS. MMB The Duty of Moderation 189 Mediation 190 Arbitration 191 Conditions of Arbitration 191 Binding Effect of Decision 192 Mediation and Arbitration Compared 192 Measures of Redress 193 Retorsion 194 Reprisals 195 References 197 CHAPTER X. WAE. The Right of Redress . 198 Definition and Purpose of War 198 Rightfulness of War - ... 199 Classification of Wars 199 Internal Wars 199 (a) Civil Wars 199 (ft) Insurrections and Rebellions 199 Belligerents .... ....... - 20 The Laws of War 200 Right of Declaring War, in Whom Vested 201 Causes of War 201 Responsibility for a Resort to War 202 Moral Considerations Involved 202 Declaration of War, Ancient and Modern Rule 203 Official Notification of an Intended Resort to War 204 Effect of War upon Treaties of Alliance, Guarantee, and Sub- sidy 204 Effects of a State of War 205 (a) Upon the Belligerent States 205 (6) Upon the Subjects of the Belligerent States .... 205 (c) Upon the Property of Enemy Subjects 207 The Laws of War 208 Their Character and Tendency 208 Subjects Treated of 210 Amount and Kind of Force that may be Used 210 Legal Effects of a State of War upon the Subjects of the Bel- ligerent States 210 Who may Lawfully Carry on War 211 Partisans 211 Levees en masse . 212 TABLE OF CONTENTS. PAQB Guerillas 214 Forces that may not be Employed in War 214 Wars with Savages 215 Forces Employed at Sea 215 Privateers 216 Letters of Marque 216 Letters of Marque and Reprisal 216 Effect of Modern Inventions 218 Methods of Carrying on War 218 Rule of Good Faith 219 Use of Deceit 219 Attack of Places 219 Duty of the Commander of a Besieged Place in the Matter of Surrender 221 Use of the Enemy's Uniform and Flag 222 Giving arid Receiving Quarter 222 Treatment of Individuals of the Enemy 223 Forbidden Practices 223 Instruments of War 223 Rule for Determining whether a Particular Instrument may, or may not, be Used in War 224 Torpedoes, and Torpedo Warfare 225 Usages of War at Sea 226 The Public and Private Property of the Enemy 226 Treatment of Property on Land 226 Requisitions 228 Contributions 230 Captured Property on Land 230 Treatment of Non-combatants in the Theatre of War .... 232 Combatant, Defined 232 Non-combatant, Defined 233 Prisoners of War 233 Who may be Made Prisoners of War 233 Treatment of 234 Exchange of 235 Paroles .236 From Whom Received 236 Breach of Parole 237 Intercourse between Belligerents 237 Flags of Truce 238 Cartels and Capitulations 239 Safe-conducts and Safeguards 239 Licenses to Trade 240 x j v TABLE OF CONTENTS. MM Offences Against the Laws of War 241 By Whom Punished 241 Spies 241 Guerillas 242 Pillaging 243 Crimes of Violence, etc 243 Temporary Occupation 244 History of the Different Views of 245 Present View of Military Occupation 246 Rights of Occupation 247 Martial Law 247 The State of Siege 247 Differences of Opinion as to the Meaning of the Term Occupation 250 Opposing Views 250 Permanent Occupation 251 Retaliation 251 How Exercised in War 252 The Termination of War 253 Truces 253 What may be Done during a Special Truce 253 General Truces, Armistice 254 Treaties of Peace 255 How Different from Ordinary Treaties 255 Binding Character of 256 How Made 256 Preliminary and Definitive Treaties 257 When Binding 257 Effects of Treaties of Peace 257 Treatment of Occupied Territory 258 The Rules of Maritime Capture 259 Tendency and Character of 259 Forces Employed in Maritime War 260 Definition of Prize 261 Title to Prize, in Whom Vested 261 Duty of Captor 261 Ransom of Captured Vessels 263 Ransom Contracts 264 Hostages 265 Recapture and Postliminy 266 Prize Courts and their Jurisdiction 268 Character of Prize Jurisdiction 269 Law Applied in Cases of Prize 270 Procedure in Prize Cases 270 Right of Appeal in Prize Cases 278 TABLE OF CONTENTS. Xy PACK Rules for Determining the Nationality of Ships and Goods 272 References 274 CHAPTER XI. NEUTRALITY. THE RIGHTS AND DUTIES OP NEUTRALS. Definition of the Term 276 Character of the Neutral Relation 276 History of Neutrality 276 Origin and Development of the Modern Theory of Neutral Obligation 277 Rule of the " Consolato del Mare " *279 General Acceptance of the Rule 279 The Principle of "Free Ships, Free Goods" 281 Rules of the Declaration of Paris 284 Binding Force of the Declaration 286 Effect of Claims to Exclusive Dominion upon the Develop- ~ ment of the Neutral Theory 288 The Monopoly of Colonial Trade 291 The Rule of 175(j 292 Development of the Theory of Neutrality among the Non- Maritime States of Europe 292 Influence of England 293 General Acceptance of the Modern Theory in the Seven- teenth Century; its Later History 294 Gradations of Neutrality 295 Permanent Neutrality 296 Armed Neutrality 296 Strict Neutrality 297 Neutral Duty of a State 297 Duties of Neutrals to Belligerents 299 Asylum to Troops and Ships 299 Asylum in the Case of Public and Private Vessels . . . 299 Neutral Territory, Immunity of from Acts of Belligerency 800 Responsibility of a Neutral State for the Acts of its Subjects . 302 View of England and the United States 303 Continental View of the Same Subject 305 Neutral Rights 306 Their Character and Extent 306 Case of the Chesapeake 307 Case of the Florida 308 Neutrality Laws 309 Neutral Obligation of a State Determined by International, not Municipal, Law 310 English Neutrality iaws 311 TABLE OF CONTENTS. PAGE Neutrality Laws of the United States 313 Neutrality Laws of other States 314 Case of the Alabama 315 The Geneva Arbitration 327 References 335 CHAPTER XIL CONTRABAND OF WAR. History of the Practice 336 Power of a Belligerent over Neutral Commerce in Time of War 338 General Character of the Restrictions 338 The Rules of Contraband Affect Chiefly the Acts of Indi- viduals 339 Character of Contraband Trade 339 Rules for Determining Contraband 340 Difficulty of Stating a Precise Rule 340 The Question Determined by Prize Courts 341 Field's Rule 341 Rule of the Supreme Court of the United States .... 342 Application of the Rules 343 Destination of Ships and Goods 345 Destination, how Determined 345 Case of the Springbok 346 Case of the Peterhoff 349 The Doctrine of Continuous Voyages 351 Difference between the Old and New Rule 352 Penalty for Contraband Trade 353 Rule as to Innocent Cargo 354 Release of Neutral Ship on Surrender of the Contraband Cargo 355 Neutral Conveyance of Enemy's Troops and Despatches. . . 356 Definitions of the Terms 356 The Destination Important 357 Cases of the Friendship and Greta 357 Presumption in the Case of Hostile Despatches 358 Despatches of a Belligerent to its Ministers and Consuls in Neutral State 358 Conveyance of Mails in the Ordinary Course of Business . 359 Case of the Trent 360 Occasional Contraband 362 The Rule of Pre-emption 364 References . 365 TABLE OF CONTENTS. xv ji CHAPTER XIII. BLOCKADE. piGE Blockade 366 Definition of 366 Right of Blockade, where Exercised 366 Valid Blockade 367 How Established and Notified 367 (a) By Proclamation 368 (b) By Notification or Endorsement 368 (c) By Proclamation and Notification 368 What Constitutes a Breach of 369 Penalty for Breach of 370 Cases of Innocent Entrance to Blockaded Ports .... 370 Duration of the Penalty 371 Breach of Blockade by Egress 372 Termination of Blockade 372 Pacific Blockade 373 References 373 CHAPTER XIV. THE EIGHT OF SEARCH. The Right of Search, a Belligerent Right 375 When and Where Exercised 375 Manner in which the Right is Exercised 376 Duty of Boarding Party 377 The Right of Visitation 379 Impressment of Seamen 380 Controversy between England and the United States . . 381 The Right of Convoy 388 Views of England as to 384 Views of the United States as to 385 Not a Right According to International Law 386 Searches Authorized in Time of Peace 386 (a) To Execute Revenue Laws 387 (b) On Suspicion of Piracy 387 (c) Search of Merchant Vessels by War Vessels of the Same State 387 (d) Right of Approach to Verify Nationality 387 Case of the Virginius 388 References 392 B xv iii TABLE OF CONTENTS. PAOB APPENDIX A. Instructions for the Government of Armies in the Field. By Dr. Francis Lieber .... 395 B. The Geneva Convention of 1864 and 1868 . . 429 C. The Declaration of Paris of 1856 437 D. The Declaration of St. Petersburg of 1868 . . 440 " E. The Rules of War on Land, Recommended for Adoption by the Institute of International Law at its Oxford Session of 1880 442 INDEX ........ . . . o ...... - 461 LIST OF AUTHORITIES CITED IN THE PREPARATION OF THIS VOLUME. Abdy. See Kent's Commentaries. Amos, Sheldon. Political and Legal Remedies for War. New York, 1880. The Science of Law. New York, 1875. Azuni. The Maritime Law of Europe. 2 vols. New York, 1806. Bar, E. International Law (Private). Edinburgh, 1885. Bernard, Mountague. The Neutrality of England during the Amer- ican Civil War. London, 1870. Bluntschli, J. C. Le Droit de Butin en General et Specialement du Droit de Prise Maritime. Brussels, 1877. Le Droit International Codifie. Paris, 1874. Das moderne Volkerrecht der civilisirten Staten als Reichsbuch dargestelt. Leipsic, 1877. Boyd, A. C. See Wheaton. Brenton, E. P. The Naval History of Great Britain, 1783-1836. 2 vols. London, 1837. Bryce. The Holy Roman Empire. London. Bynkershoek, Cornelius. Treatise on the Laws of War. American Edition. Philadelphia, 1810. Calvo, Carlos. El Derecho Internacional. Paris, 1862. Le Droit International. Paris, 1862. Colleccion Completa de los Tratados de Todos los Estados de la America Latina. 6 vols. Paris, 1862. Cooley, T. M. The General Principles of Constitutional Law in the United States of America. Boston, 1880. Constitutional Limitations. 5th Edition. Boston, 1883. Creasy, E. S. First Platform of International Law. London, 1876. Gushing, Caleb. The Treaty of Washington. New York, 1873. CiLssy, Ferdinand de. Dictionnaire ou Manuel Lexique du Diplo- mate et du Consul. Leipsic, 1846. XX LIST OF AUTHORITIES. Dahlgren, Admiral J. A., U.S.N. International Law. Boston, 1877. De Lolme. The Constitution of England. Chandos Edition. Lon- don and New York, n. d. Dictionnaire Universel du XIX me Siecle. P. Larousse. 16 vols. Paris, 1866. Diplomatic Correspondence of the United States. Various years. Washington, D.C. Dumont, Jean. Corps Universel Diplomatique du Droit des Gens. 8 vols. Amsterdam and The Hague, 1726-31. Elliot, Jonathan. The American Diplomatic Code. 2 vols. Wash- ington, 1834. Field, D. D. Draft Outlines of an International Code. 1 vol. New York, 1874. Foreign Kelations of the United States. Various years. Washing- ton, D.C. Garden. Histoire General des Traites de Paix. 14 vols. Paris, 1853. Geneva Arbitration. Foreign Relations of the United States. 1872, 1873. 4 vols. Washington, 1873. Gessner, L. Les Droits des Neutres sur Mer. 2d Edition. Paris. Grotius, Hugo. De Jure Belli et Pacis. 1 vol. Paris, 1625. Barbeyrac's French Edition. Various editions. Paris, 1724- 1768. The Laws of War. First English Edition, 4to. London, 1738. " " Whewell's English Edition. London, 1853. (There are also translations in German, Dutch, Swedish, and Danish.) Hatt, W. E. International Law. Oxford, 1880. HaUam, H. The Constitutional History of England. Chandos Edi- tion. New York and London, n. d. HaUeck, H. W., Maj.-Gen. U.S.A. International Law, by Sir Shep- stone Baker. 2 vols. London, 1878. International Law. 1. American Edition. 1 vol. San Fran- cisco, 1861. International Law. 2. Students' Edition. Philadelphia, 1866. Hautcfeuille, J. B. Des Droits des Nations Neutres, etc. Paris, 1859. Heffter, A. G. Le Droit International Public de 1'Europe. Berg- son's Edition. 1 vol. Paris, 1866. LIST OF AUTHORITIES. xx j Henshaw, J. S. A Manual for United States Consuls. New York, 1849. Eertskt, Lewis. Complete Collection of Treaties and Conventions be- tween Great Britain and Foreign Powers. London, 1827-35. Map of Europe by Treaty since the Peace of 1814. 3 vols. London, 1875. Hildreth,E. History of the United States. 6 vols. New York, 1849. Holmes, 0. W. See Kent. Ihne, William. History of Rome. 5 vols. London, 1871. Kent, James. Commentaries on American Law. Holmes's Edition. 2 vols. Boston, 1873. Commentaries on American Law. Abdy's Edition. London, 1878. Kluber, J. L. Droit des Gens Moderne de 1'Europe. Ott's Edition. Paris, 1861. Droit des Gens Moderne de 1'Europe. 2d Edition. Paris, 1874. Laveleye, E. de. Des Causes Actuelles de Guerre en Europe et de 1'Arbitrage. Brussels and Paris, 1873. Lawrence, W. B. A Study on Consular Jurisdiction (see Revue de Droit Int.). Brussels, 1878. See Wheaton. Lawrence, T. J. Essays on Modern International Law. 1 vol- London, 1884. Laws. See Revised Statutes of the United States. Larimer, J. The Obligations of Neutrals. Edinburgh, 1873. Institutes of the Law of Nations. Edinburgh, 1884. The Final Problem of International Law (see Revue de Droit Int.). Brussels, 1877. Maine, Sir H. 8. Ancient Law. New York, 1864. Lectures on the Early History of Institutions. New York, 1875. Popular Government. New York, 1886. International Law. London, 1888. Manning, William Oke. Commentaries on the Law of Nations. Amos's Edition. London, 1875. Martens, Ch. de. Recueil Manuel et Pratique des Traites, Conven- tions, etc., 1760-1857. Leipsic, 1857. Causes Celebres du Droit des Gens. Leipsic, 1827. Nouvelles Causes Celebres du Droit des Gens. G. F. de Mar tens's Edition. Leipsic, 1844. xx ii LIST OF AUTHORITIES. Martens, O. F. de. Precis du Droit des Gens Moderne de 1'Euiope. Ch. Verge's Edition. 2 vols. Paris, 1864. Recueil des Traites. 8 vols., with Murrhard's Continuation. Paris, 1817-1844. Recueil des Traites, with Samwer and Hofl's Continuation. Gottingen, 1876. Cours Diplomatique. 3 vols. Berlin, 1801. Mitts, If. E. The Law of Eminent Domain. St. Louis, 1879. Miltitz, A. de. Manuel des Consuls. London, 1843. Mommsen. The History of Rome. 4 vols. New York, 1885. Moore, John B. Moore on Extradition. 2 vols. Boston, 1891. Mbrey, W. C. Outlines of Roman Law. New York, 1884. Neumann, L. Handbuch des Consulatswesens mit besonderer Be- riicksichtigung des 6'sterreichischen Reichs. Vienna, 1854. Nys, E. Les Origines de la Diplomatic et le Droit d'Ambassade Jusqu'ii Grotius. Brussels, 1884. La Guerre Maritime. Brussels, 1881. Ortolan, E. Diplomatic de la Mer. 2 vols. Paris, 1856. Phillimore, Sir B. International Law. 4 vols. 2d Edition. Lon- don, 1871. Puffendorf. De JuraB Naturae et Gentium. London, 1672. French edition by Barbeyrac, 1706. Rarike, L. wn. History of the Popes. 2 vols. Philadelphia. 1841. A History of England, principally in the 17th Century. 5 vols, Oxford, 1875. Universal History. Vol. 1. New York, 1885. Revised Regulations, United States Army. Washington, 1881. Regulations, United States Navy. "Washington, 1876. Reports, American. Supreme Court. Vols. 1-4, Dallas. Vols. 1-4, 1790-1800. " 5-13, Cranch. " 1-9, 1800-1815. " 14-25, Wheaton. " 1-12, 1816-1827. " 26-41, Peters. " 1-16, 1827-1842. " 42-65, Howard. " 1-17, 1843-1860. " 66,67, Black. " 1,2, 1861,1862. " 68-90, Wallace. " 1-23, 1863-1874. " 91-103, Otto. " 1-10, 1875-1880. LIST OF AUTHORITIES. Reports, English. Admiralty and Prize. Robinson's Admiralty Reports. 6 vols. Boston, 1861. Dodson's Admiralty Reports. Boston, 1861. Revised Statutes of the United States. Washington, 1878. Revue de Droit International. Vols. i.-xiv. (1869-1882). Brussels. Bymer, Thomas. Foedera, Conventiones, etc. Clarke's Edition. London, 1816. Schuyler, Eugene. American Diplomacy and the Furtherance of Commerce. New York, 1886. Spear, S. T. The Law of Extradition. New York, 1885. Stephen, Sir J. F. History of the Criminal Law of England. 3 vols. London, 1883. Story, Joseph. Commentaries on the Conflict of Laws. Boston, 1834. Commentaries on the Constitution of the United States. 2 vols. Cooley's Edition. Boston, 1873. Thiers. A History of the French Revolution. Philadelphia, 1847. History of the Consulate and Empire. London, 1876. Treaties of the United States. See Treaties and Conventions of the United States. Washington, 1871. A later edition, with valuable notes, was issued in 1889. See also United States Statutes at Large, 1875, pp. 819--902 for Analytical Index. Washington, 1875. United States Statutes at Large. Annual Volumes, 1875-91. Washington. Upton, F. H. The Law of Nations Affecting Commerce during War. 1 vol. New York, 186?. Vattel, E. de. Le Droit des Gens ou Principes de la Loi Naturelle Appliques a la Conduite et aux Affaires des Nations et des Souverains. 2 vols. Leyden, 1758. The Law of Nations. Chitty's English Edition. London, 1797. Of the older works upon International Law, Vattel is cited more frequently than any other. This is the case not only in the works of text writers, but in the diplomatic correspondence of modern states. Ward, Robert. An Enquiry into the History and Foundation of the Law of Nations in Europe. 2 vols. London, 1795. Warden, D. B. On the Origin, Nature, Progress, and Influence of Consular Establishments. Philadelphia, 1813. The same. French Edition. Paris, 1815. LI S T OF AUTHORITIES. Wharton, F. The Conflict of Laws (Edition of 1881). Boston, 1881. A Digest of the International Law of the United States. 3 vols. Washington, 1886. Wheaton, Hemy. The Elements of International Law. 3 vols. Philadelphia, 1836. W. B. Lawrence's Edition. Boston, 1863. R. H. Dana's Edition. Boston, 1866. A. C. Boyd's Edition. London, 1878. French Edition. 2 vols. Paris, 1841. " " " Leipsic, 1874. History of the Law of Nations in Europe and America. New York, 1845. Digest of the Law Maritime, Captures, and Prizes. New York, 1815. Wildman, S. Institutes of International Law. 2 vols. London, 1849. Wbolsey, T. D. Introduction to the Study of International Law 5th Edition. New York, 1878. OUTLINES OF INTERNATIONAL LAW. CHAPTER I. DEFINITION AND HISTORY. 1. Definition. In its most general acceptation the term law is applied to the rule or principle underlying and controlling a sequence of events. When used in a political sense, and with reference to the external and internal relations of states, it is divided into : (a.) Municipal Law comprising those rules of con- duct which are sanctioned by a state and imposed by its sovereign power upon its citizens or subjects. 1 1 In their desire to discriminate between law and morality some English writers have given to the term law a narrower meaning than is usual in other languages. This tendency is seen in their frequent denial of the existence of a science of international law; a denial based upon a narrow and technical definition of the term law itself. From their point of view a law is not entitled to that name unless a superior authority be conceived to exist, powerful enough to compel obedience to its commands. If that which would be regarded as law by this restricted definition be closely examined, it will be seen that its right to the title is by no means clear. As most modern states are now organized no law can long endure, or be rigidly en- forced, which does not commend itself to the great mass of citizens of a state. So soon as they cease to regard it as just, or even expe- dient, its enforcement becomes difficult and the law is repealed, or 1 2 OUTLINES OF INTERNATIONAL LAW. (5.) International Law comprising the aggregate of rules and limitations which sovereign states agree to observe in their intercourse and relations with each other. As it deals with the relations of states in their sovereign capacity, it is sometimes called Public Inter- national Law, to distinguish it from that branch of the science which has to do with the relations of states to the citizens or subjects of other states, which is called Private International Law or, as it is in question whether the courts of a state shall apply their own municipal laws or those of another state in the deter- mination of a given cause, this branch of the subject has sometimes been called the Conflict of Laws. 2. International and Municipal Law Compared. The essential difference between the two systems of law will be found to consist in the extent and character of the binding force of each. The sovereign authority of a state sanctions its own municipal laws, and, within its territorial limits, enforces obedience to their provis- ions. As sovereign states acknowledge no common superior, it is obvious that there is no authority above or outside a state which can effectively coerce it into obedience to the provisions of International Law. An individual who suffers an injury, or whose personal or becomes a dead letter. Municipal laws, therefore, no less than inter- national, in the last resort, depend for their efficiency upon the con- sent of those whose conduct is to be regulated by them; and a law which all nations expressly agree to observe, or tacitly accept as an international usage, is as well entitled to consideration as is a provision of municipal law which is enacted and obeyed because a majority of citizens believe it to be just and necessary. It is not necessary to say that the view here discussed is not shared by the later school of English writers, of which Professor Sheldon Arnos and Sir Henry Sumner Maine are the able representatives. DEFINITION AND HISTORY. 3 property rights are invaded, seeks and obtains redress in the courts of his country, which are authorized to hear and decide his case, and are given power to en- force their judgments and decrees. If a nation be injured or invaded by another, or have a cause of dif- ference with a foreign state, it cannot appeal to an international tribunal of any land to remedy its wrong or to adjust its difference, but must seek redress by remonstrance or negotiation, or, as a last resort, by war, when all peaceable methods of adjustment have failed. HISTORY OF THE SCIENCE. 3. The Oriental Monarchies. International law can hardly be said to have existed in ancient times. The absolute and crudely organized Eastern monarchies were intolerant of the very existence of neighboring nations, and lived in a state of constant warfare with them. Of distant nations they knew nothing, and as there must be communication or intercourse of some kind between states in order that the rules may be de- duced which shall govern their relations with each other, it was impossible that a science resembling in- ternational law could have existed among them. 4. The Greeks acknowledged the independent exist- ence of other states, both within and without the Hel- lenic peninsula. They had intercourse with them, and sent and received ambassadors and diplomatic agents. The pressure of circumstances obliged them, at times, to enter into offensive and defensive alliances with each other, and some of their later confederacies were highly organized and possessed many elements of permanency. All foreigners, however, were known to them, as barb*' rians ; their customs in war were extremely cruel, and 4 OUTLINES OF INTERNATIONAL LAW. breaches of faith were too common to favor the growth of a science which depends to a higher degree than any- other upon the sacred observance of agreements and promises. 5. The Romans differed from the Greeks in that their intercourse with foreign nations was so great in amount, and so diversified in character, as to enable their jurists to deduce from their international experience a crude set of rules by which they conceived that their recipro- cal intercourse with other states was governed. This was known among them as the Jus Feciale. It differs radically from the modern science of international law, which is founded upon the consent of nations and pre- supposes the existence of many independent states, and rather expresses the imperfect and one-sided views of international obligation which were held by the most powerful state of the ancient world. 6. From the downfall of the Western Roman Empire until the close of the dark ages a slow but gradual de- velopment of the science can be traced, chiefly in the history of the Mediterranean cities, which maintained more or less intimate commercial relations with each other during this period. Some of these cities had sur- vived the wreck of the empire, and had maintained their corporate existence during the inroads of the Teutonic invaders. Others had been founded from time to time, especially during the period of revival of civilization. All had been able to endure the evil effects of the feudal system only with extreme difficulty, and it was not until those effects had in some degree passed away that the elements of civilization, which had been preserved among them, began to increase, and to exer- cise an influence upon the rude society by which they DEFINITION AND HISTORY. 5 were surrounded. The first signs of a revival began to appear toward the close of the dark ages, and were manifested in the marked interest shown in the revival of manufactures, and the establishment and extension of commercial intercourse. 7. Effect of the Revival of Commerce. Commerce, and especially maritime commerce, cannot long be carried on without its participants agreeing upon some rules for its protection and regulation. All ships engaged in it are exposed alike to the depredations of pirates and the perils of the sea. The necessity of policing harbors, of lighting dangerous coasts, and of maintain- ing adequate port facilities must also have received early attention. As the cities were themselves inde- pendent, or were situated in different states and ac- knowledged no common superior, such rules, to have been regarded as obligatory, must have commended themselves to those engaged in commercial pursuits, must have existed with their tacit or expressed con- sent, and their binding force could have continued only so long as they were generally regarded as just and equitable. 8. Early Codes of Maritime Law. Primitive codes of maritime law, fulfilling most of these conditions, and so possessing some of the characteristics of inter- national law, are found to exist in the early sea-laws of the commercial cities of southern and western Europe. The most important of these were : (a.) "The Jugements of Oleron." This was a body of regulations governing the navigation of the western seas, and is believed to have been drawn up in the eleventh century. 1 Its authority was long recognized 1 Azuni, "Maritime Law," vol. i., p. 379. 6 OUTLINES OF INTERNATIONAL LAW. in most of the Atlantic ports of France, and for this reason portions of it were incorporated in the Maritime Ordinances of Louis XIY. (5.) " Tke Consolato del Mare ;" or, " Customs of the Sea," was a more extensive collection of rules appli- cable to the decision of questions arising in commerce and navigation, both in peace and war. It also con- tained rules defining the rights of belligerents and neutrals, as they were then sanctioned and understood. It was probably drawn up in the twelfth century, the earliest authentic copy having been published in Bar- celona in 1474. Its authors are unknown, but their work exhibits a thorough knowledge of the Eoman maritime law, of the early maritime customs of the commercial cities of the Mediterranean, and of the principles of contract, as applied to trade and naviga- tion. Great weight was attributed to the work by the commission to whom Louis XIY. intrusted the prepa- ration of his celebrated Maritime Ordinances. Grotius speaks of the " Consolato del Mare " as containing the constitutions of France, Spain, Syria, Cyprus, the Bale- aric Isles, Venice, and Genoa. 1 Its provisions on the sub- ject of " prize law, besides the concurrence of the states above named, coincided with all the treaties relating to their provisions made during several succeeding cen- turies," a and " they agree at present with the maritime code of Europe, notwithstanding many attempts to re- vise their regulations." s (c.) " The Guidon de la Mar " is a work of more comprehensive character than the "Consolato del Mare," and is of considerably later date. It was drawn 1 Manning's "Law of Nations," p. 15. *lbid. 3 Ibid. DEFINITION AND HISTORY. 7 up toward the close of the sixteenth century, at the supposed instance of the merchants of Rouen. It treats principally of the law of maritime insurance, the laws of prize, and contains a code of regulations governing the issue of letters of marque and reprisal. Other Codes of Maritime Law. The " Maritime Law of Wisbuy," the " Customs of Amsterdam," the " Laws of Antwerp," and the " Constitutions of the Hanseatic League " are names applied to bodies of sea-laws simi- lar to those already described, which were recognized in the cities of northwestern Europe on the North and Baltic seas. These early systems had some elements in common. The authorship of none of them is fully known. The best opinion is that they were drawn up by commis- sions of merchants or lawyers representing different cities, thus giving them in some degree the character of commercial treaties. All of them contain provisions extracted from the earliest-known maritime code, the Rhodian Laws, which were incorporated at an early date into the general body of Roman Law, and were recognized and sanctioned by the emperors Tiberius and Hadrian. In some of them the subjects of neu- trality and neutral rights are so broadly and liberally treated as to leave but little room for improvement in the codes of more" recent times. All of them evince, on the part of their authors, a familiarity with the Civil Law, and each in turn exercised a decided influence in the preparation of those which followed it. These sea-laws, however, applied to but one phase of international relations maritime commerce and some of them had been in existence several centuries before the intercourse of states on land had become sufficiently 8 OUTLINES OF INTERNATIONAL LAW. general to make it possible to deduce any of its under- lying principles, or even to formulate the common usages of states in peace or war. The nations of Eu- rope during the period between the fifth and fifteenth centuries were in formative, transition state, of which little detailed history remains. General causes were at work, however, some of which tended to favor, and some to retard, the growth of international law. Some of these were : 9. (a.) The Feudal System. As a system of land-ten- ure this institution is of great antiquity ; as a system of government in Europe it dates back to the migra- tions of the Teutonic tribes into western and south- western Europe, which were in progress during the period between the third and sixth centuries. " The German nations who passed the Ehine to con- quer Gaul were in a great degree independent ; their princes had no other title to their power but their valor and the free election of the people ; and as the latter had acquired, in their forests, but contracted notions of sovereign authority, they followed a chief less in qual- ity of subjects than as companions in conquest. Be- sides, this conquest was not the irruption of a foreign army, which only takes possession of fortified towns ; it was the general invasion of a w^hole people in search of new habitations ; and, as the number of the con- querors bore a great proportion to that of the con- quered, who were at the same time enervated by long peace, the expedition was no sooner completed than all danger was at an end, and of course their union also. After dividing among themselves what lands they thought proper to occupy, they separated, and, though their tenure was at first only precarious, yet DEFINITION AND HISTORY. 9 in this particular they depended, not on the king, but on the general assembly of the nation. " Under the kings of the first race the fiefs, by the mutual connivance of the leaders, at first became an- nual ; afterwards they were held for life. Under the descendants of Charlemagne they became hereditary. And when, at length, Hugh Capet effected his own election, to the prejudice of Charles of Lorraine, in- tending to render the crown, which, in fact, was a fief, hereditary in his own family, he established the hered- itaryship of fiefs as a general principle ; and from this epoch authors date the complete establishment of the feudal system in France. " On the other hand, the lords who gave their suffrages to Hugh Capet forgot not the interest of their own ambition. They completed the breach of those feeble ties which subjected them to the royal authority, and became everywhere independent. They left the king no jurisdiction, either over themselves or their vassals ; they reserved the right of waging war with each other ; they even assumed the same privilege, in certain cases, with regard to the king himself ; so that if Hugh Capet, by rendering the crown hereditary, laid the foundation of the greatness of his family, and of the crown itself, yet he added little to his own authority, and acquired scarcely anything more than a nominal superiority over the number of sovereigns who then swarmed in France." ' This system of government, which seems to have been the only one of which the Teutonic mind could conceive, was carried by the same methods into 1 De Lolme, "The Constitution of England," book i., chap, i., pp. 148, 149. 10 OUTLINES OF INTERNATIONAL LAW. Italy and Spain, and was suddenly introduced into England at the period of the Norman Conquest. The system culminated when the modern states of Europe began to assume something of their present form. The great monarchies could only grow in size and strength at the expense of the power and posses- sions of the feudal nobles, and so soon as the former were securely established the power of the latter began to decline. While the system lasted its effects were, on the whole, unfavorable to the growth of interna- tional law. Europe was divided into a large number of small states, or groups of states, ruled by dukes and barons, each in a condition of constant hostility with his neighbors. Intercourse was always difficult, and at times impossible. Commerce by land could not exist, and the growth of towns was hampered and restricted. War was the rule, and peace the excep- tion. The rules of war were cruel and harsh in the extreme. Quarter was rarely given ; the garrisons of besieged towns were put to the sword ; prisoners of war were reduced to slavery ; and so great was the mutual distrust of sovereigns that they maintained but little intercourse with each other, and obtained such information as they desired by questionable means through agents or spies. 10. (5.) The Institution of Chivalry. This came into existence during the feudal period, and was in great part an outgrowth of the Crusades. It contributed powerfully to ameliorate some phases of the laws of war. Its code applied at first only to the conduct of knights towards each other ; but, in so far as it recog- nized and practised, to some extent, the principles of Christianity, its effects were soon felt in the milder DEFINITION AND HISTORY. H treatment of captives and slaves, and in the different and stricter views which, began to prevail in the matter of keeping faith with enemies and strangers. 1 11. (c.) The Roman Church. Unquestionably the most powerful influence that was exerted upon the sci- ence of international law during its formative period was that of the Koman Church. As the political pow- er of the Western Empire decayed, and finally dis- appeared, the Church, an organization having at once a religious and a secular aspect, became for a time the most powerful organ of civilization in that portion of "Western Europe which had formerly acknowledged the sway of the Koman emperors. Its authority was generally acknowledged and respected, and its minis- ters and bishops, in addition to their sacred functions, frequently found themselves called upon to perform duties entirely secular in character. Out of this state of affairs grew the Canon Law, a code based, to a great extent, upon the Roman Law, but adapted to the po- culiar exigencies of the Church and times. While in- tended primarily as a constitution for the government of the Church and the administration of its vast inter- ests, its provisions were found to be applicable to the decision of a great variety of controversies, ranging in importance from the disputes of private individuals to the adjustment of difficulties of serious international concern. It is a tribute to the profound influence of the Roman Empire upon the minds of men that the theory of uni- versal sovereignty should have so long survived its 1 For an account of the usages of war in the Middle Ages see Ward's "Inquiry into the Law of Nations before Grotius;" vol. L, chap, vi.-is. 12 OUTLINES OF INTERNATIONAL LAW. downfall, and that it should have been deemed neces- sary, in the Middle Ages, to find a substitute for it in existing institutions. Such a substitute was found in the empire founded by Charlemagne, but with an im- portant modification. The temporal head of Christen- dom was the German emperor ; its spiritual head was the Koman pontiff ; but, as the line of division was not sharply drawn, these personages often came into con- flict, and " the international law of the Middle Ages was influenced enormously by the conflicting claims of the pope and the emperor." ' As the imperial power, at any time, depended largely upon the personal influ- ence and character of the emperor, and as no line of political policy was long adhered to by them, the pa- pacy, having a determined and well-settled policy, in time began to acquire a preponderance even in tem- poral affairs. " The idea of a common superior still lingered among the nations, and greatly assisted the Roman pontiffs in their efforts to obtain a suzerainty over all temporal sovereigns. For as the empire founded by Charlemagne gradually decreased in extent till it scarcely extended beyond the limits of Germany, more and more diffi- culty was felt in ascribing to it universal dominion. Yet no one dreamed of asserting boldly that indepen- dent states had no earthly superior ; and therefore, when the papacy came forward with its claims, men's minds were predisposed to accept them. As an arbitrator between states the pope often exercised great influence for good. In an age of force he introduced into the settlement of international disputes principles of hu- 1 Lawrence, " Essays on Modern International Law," p. 149. DEFINITION AND HISTORY. ^3 inanity and justice, and had the Roman Curia always acted upon the principles which it invariably professed, its existence as a great court of international appeal would have been an unmixed benefit." ' (Ecumenical Councils. " The assembly of deputed representatives from the different Christian states gave to the (Ecumenical Councils the composition of a sort of European congress. Besides the settlement of articles of faith, and the deposition or excommunication of princes, determined in these councils, there are distinct examples in which the pope was made referee in ques- tions of international controversy. At the Council of Lyons, convened by Gregory X., in 12 74, the inhab- itants of Ancona having contested the right of the Venetians to levy tolls, and exercise other rights of exclusive dominion in the Adriatic, the question was referred to the pope and was discussed. Judgment was given that the inhabitants of Ancona had no grounds for their complaints, and that the Venetians were possessed of the sovereignty of the Adriatic. Xone of the ambassadors or princes present at the council objected to the decision, and the judgment passed without any protest respecting its validity. Decisions on questions were given by the pope indi- vidually, unassisted by such councils ; as, for instance, when the Spaniards were pushing their discoveries in the West, and the Portuguese in the East, these nations referred to the pope for limits, in case their exploring parties should claim the same territories, and Alexan- der YI. accordingly gave them, in his well-known bull, a line of demarcation." " The advantage that might 1 Lawrence, "Essays on Modern International Law," p. 149. 14: OUTLINES OF INTEKNATIONAL LAW. have been derived from the papal interference would have been very great had it been an authority exer- cised for justice, instead of abused for ambition." 1 12. JRise of the European Monarchies. During the period between the fourteenth and sixteenth centuries, and as a consequence of the decline of the feudal no- bility, the great monarchies of Europe began to acquire strength and consistency, and to assume something of their present territorial form. These governments were absolute in character, and although some of them were at times administered with considerable liberality, in none were popular rights recognized, and none were limited by representative institutions. Not only were they absolute in form, but in most of them the idea of sovereignty had become associated with the person of the sovereign. He was the head of the state ; the title to its territory and property w r as vested in him, and he was held to be able to dispose of it at will. Such restraints as were established upon the royal power had chiefly to do with internal affairs, and rarely extended to his foreign relations. Such being the case, diplo- matic relations soon became common, alliances were entered into, agents were established at foreign capi- tals, through whom information was obtained as to the schemes and intentions of foreign powers. Embassies were sent and received, ambassadors maintained, and great wars were undertaken. Conquests were made, and territory changed hands ; sometimes as a result of war, sometimes after the manner of a transfer of prop- erty among private individuals. 1 Manning, pp. 12 and 13, citing Selden, "De Dominio Maris," i., c. xvi. DEFINITION AND HISTORY. 15 Such intricate and important international relations could not long exist without furnishing precedents of sufficient value to be cited in negotiation, or without some practices and usages acquiring, by frequent repe- tition, or common consent, the binding force of inter- national customs. The sea-laws furnished a basis upon which to erect a code of maritime law ; their recent experience in war and negotiation furnished abundant materials for the preparation of a code of international usages, and the Roman Law furnished a stock of legal maxims and principles with which to bind the whole fabric together. 13. The Influence of Grotius. At the close of this period, and at a most opportune moment in the history of the science, there appeared the first authoritative treatise upon the Law of Nations, as that term is now understood. It was prepared by Hugo Grotius, a native of Delft, in Holland. He was a man of great learning, of considerable experience in public affairs, and a profound student of the Roman Law; and his treatise, which was published early in the seventeenth century, 1 is, in substance, an application of its princi- ples to the external relations of states. It was at once perceived to be a work of standard and permanent value, of the first authority upon the subject of which it treats. General Halleck justly observes with refer- ence to it that it " has been translated into all lan- guages, and has elicited the admiration of all nations and of all succeeding ages. Its author is universally regarded as the great master-builder of the science of International Jurisprudence." a 1 1625. * Halleck, vol. I, p. 12. 16 OUTLINES OF INTERNATIONAL LAW. Great as were the inherent merits of Grotius's work, it could never have exercised so decisive an influence upon state affairs as it did, had it not appeared at a time when the existing political conditions were espe- cially favorable for its reception. The Thirty Years' War, then drawing to a close, had been marked during its entire course by a refinement of barbarous cruelty, and by acts of atrocity perpetrated upon the unarmed and unoffending inhabitants of the valley of the Rhine which stand without a parallel in the history of an- cient or modern war. Many of the military operations had been undertaken rather with a view to the chance of pillage than from a desire to injure or defeat the enemy. Population had diminished, great tracts of territory had been laid waste, and commerce and man- ufactures had well-nigh disappeared. With an experi- ence of the horrors of war so bitter and long continued as that which Europe was even then undergoing, it is not remarkable that men should have been willing to listen to any scheme which promised to mitigate the severity of war, or to lighten, in any degree, its terrible burdens. But, great as the losses had been in men and material wealth, it may be doubted whether a desire to amelio- rate the existing usages of war would have been, of it- self, an agency sufficiently potent to bring about a re- form of International Law, had not another and a more powerful factor contributed directly to the same end. During the continuance of the Thirty Years' War the composition of the belligerent states and the pur- poses for which the war was carried on had undergone a complete change. The contest had originated in an attempt of the Protestant princes to achieve their po- litical and religious independence. In its later stages DEFINITION AND HISTORY. -^ it had been transformed into a struggle for preponder- ance between France and Austria, and it had termi- nated, in 1648, to the complete advantage of the former power. In the course of the war the old idea of papal and imperial supremacy had finally disappeared. The ancient standard of international obligation had ceased to exist, and a newer and more enduring standard had to be erected in its place. As the idea of a common earthly superior was no longer recognized, it became necessary to invent a theory which, while conforming to existing political conditions, should furnish a safe and practicable rule for the conduct of interstate relations. Such a scheme was that proposed by Grotius. " His International Law had two sources the Law of Nature and the consent of all or most nations ; but the latter is only supplementary to the former, and cannot or- dain anything contrary to it." l The Law of Nature, which is but another name for the Jus Gentium of the Koman Law, furnished the legal basis for Grotius's work, and from it he derived his fundamental idea of the equality and independence of sovereign states. States, like men, were, from his point of view, controlled in their actions and relations by the operation of a law of nature as ancient as the universe itself. This law could be added to, but not modified. He believed it to constitute a standard by which the conduct of states and the actions of individuals could be finally judged ; and he imagined that the Eoman Law afforded an historical example of its successful application in inter- national affairs. "We now know that Grotius's theory of international 1 Lawrence, " Essays on Modern International Law," p. 179. 2 18 OUTLINES OF INTERNATIONAL LAW. obligation was in the main correct, however erroneous may have been his conception of its origin and sanc- tion; and it is a remarkable tribute to the intrinsic excellence of his work that it has endured so success- fully, for more than two centuries and a half, the as- saults of destructive criticism and the crucial test of practical experience. Xone of the many ingenious theories which have been advanced in opposition to his have received even transient recognition, and upon the foundations so deeply and solidly laid by its im- mortal founder the fabric of the science securely rests. 14. THE SOURCES OF INTERNATIONAL LAW. (a.} Treaties and Conventions. As International Law derives its binding force from the consent of nations, and as treaties are compacts, freely entered into, de- scribing the conditions and defining the limitations which nations agree to observe in their intercourse with each other, it follows that they are of the highest authority in determining what that law is upon any point covered by their stipulations. For example, many naturalization treaties stipulate for a period of residence, usually five years in length, as a condition preliminary to naturalization. This warrants the in- ference that a period of residence is a necessary pre- liminary to a change of national allegiance. Other treaties provide that consuls may, under certain cir- cumstances, perform judicial acts in foreign ports. This warrants the inference that no such exercise of consular jurisdiction is legal unless authorized by treaty stipu- lations. (.) The Judgments of International Courts, or Boards of Arbitration. These tribunals are created for the DEFINITION AND HISTORY. 19 express purpose of adjusting international disputes and differences. Their judgments, therefore, should con- stitute precedents as binding upon sovereign states as are the decisions of municipal courts upon individuals who carry their difficulties to them for adjustment. (c.) The Diplomatic Correspondence of States, and other State Papers, upon Subjects Connected with For- eign Relations. This is a valuable source of informa- tion upon all questions connected with the law and usages of nations. The opinions of law officers and attorneys-general to their respective governments, the correspondence of a state with foreign powers, and the reports of "commissions created for the purpose of ob- taining and digesting information upon special sub- jects, are examples of this class. Unfortunately much correspondence between governments is still regarded as confidential, and so is not easily accessible. Eng- land and the United States, however, publish at inter- vals the greater part of their correspondence with for- eign powers. (d.~) The Roman Law. This is the earliest, as it is in many respects the most complete and elaborate code of law that has ever existed. Most of the codes of municipal law now in force among the Continental states of Europe are either directly based upon it, or derive from it the greater part of the legal principles which they contain. As it was the only system of law with which the earlier writers on International Law were familiar, and as its principles seemed to be suffi- ciently general, in character and scope, to apply to the reciprocal relations of states, its authority was fre- quently invoked by them in the preparation of their treatises. 20 OUTLINES OF INTERNATIONAL LAW. The earliest form of the Roman Law, of which we have any authentic knowledge, is that contained in the Code of the Twelve Tables. Like all ancient legal sys- tems, it was a development of the governmental expe- rience of the Roman people, to whom its provisions exclusively applied. Such aliens and strangers as were resident in the city were, at first, without legal rights or privileges, and so long as Roman citizenship main- tained its peculiar character of exclusiveness the sanc- tions and penalties of the Civil Law were held to be binding upon Roman citizens alone. As the alien class increased in numbers, as well as in wealth and importance, it became necessary to give to its members a definite legal status, and to secure to them some measure of protection in their persons and property. " The expedient to which they resorted was that of selecting the rules of law common to Rome and to the different Italian commonwealths in which the immigrants were born. In other words, they set themselves to form a system answering to the primi- tive and literal meaning of Jus Gentium, that is, law common to all nations. The Jus Gentium was, in fact, the sum of the common ingredients in the customs of the old Italian tribes, for they were all the nations whom the Romans had any means of observing, and who sent successive swarms of immigrants to Roman soil. Whenever a particular usage was seen to be practised by a large number of separate races in com- mon, it was set down as part of the law common to all nations, or Jus Gentium." 1 " It is almost unnecessary to add that the confusion 1 Maine, " Ancient Law," p. 47. DEFINITION AND HISTORY. 21 between Jus Gentium, or law common to all nations, and International Laio, is entirely modern. The clas- sical expression for International Law is Jus Feciale, or the law of negotiation and diplomacy." ' " No pas- sage," says Sir Henry Maine, in his " Ancient Law," " has ever been adduced from the remains of Roman Law which, in my judgment, proves the jurisconsults to have believed Natural Law to have obligatory force between independent commonwealths ; and we cannot but see that to the citizens of the Eoman Empire, who regarded their sovereign's dominions as conterminous with civilization, the equal subjection of states to the Law of Nature, if contemplated at all, must have seemed at most an extreme result of curious specula- tion. The early modern interpreters of the Jurispru- dence of Rome, misconceiving the meaning of the Jus Gentium, assumed without hesitation that the Romans had bequeathed to them a system of rules for the ad- justment of international transactions." 2 It is not necessary to suppose, however, that Grotius was mis- taken, either in his view of the Roman Law, or in his application of its principles to states in their interna- tional relations. That system was the outgrowth of long experience, and its methods of dealing with the legal relations of individuals were elaborated with great care. From the standpoint of the Civil Law the Roman landowner was regarded as an independent proprietor within the boundaries of his landed estate. It provided elaborate and adequate remedies, which were applied whenever his personal or property rights were trespassed upon or invaded, and it regarded all 1 Maine, " Ancient Law," p. 47. * Ibid. p. 50; Morey, p. 207. 22 OUTLINES OF INTERNATIONAL LAW. citizens as equal before the law. Grotius, in his great work, but applied these principles to sovereign states. Each state, according to his view, was independent within its territorial limits, and all states were equal in dignity and in the number of sovereign rights which they enjoyed, however unequal they may have been in power and influence. These principles lie at the foundation of modern In- ternational Law, and such of its doctrines as have re- ceived general sanction are based directly upon them. It was thus easy for Grotius and his successors to de- duce from the Koman Law by far the greater part of the system of International Law as it exists to-day. In its fundamental principles it has changed but little since Grotius's day. In its detailed rules it is under- going a slow but constant modification ; the tendency being toward greater liberality of view in the treat- ment of new questions as they arise, and in the modi- fication or amendment of old practices, to adapt them to the conditions imposed by modern civilization. Like Municipal Law, it keeps pace with the development of the human race; it is affected by that development, and, in turn, reacts upon it, influencing the current of human events to a remarkable degree. (e.) The Works of Text Writers. The writings of those who have made the history and development of international usages a subject of special study will al- ways constitute our chief source of knowledge upon the subject. The earlier writers were roughly grouped into two schools. One, made up chiefly of Continental authors, whose works were largely based upon the Ko- man Law, and by whom great authority was attached to the views of text writers. The other, composed of DEFINITION AND HISTORY. 23 English and American writers, whose works, strongly influenced by the Common Law of England, attach the greatest weight to the decisions of competent courts and to the precedents established by the usages of na- tions and recognized by them as binding in their inter- course with each other. The present tendency is to obliterate this distinction. The history of both the Roman and Common Law has been exhaustively stud- ied, and is now generally known, and the historical method of treatment is found to be as successful in its application to International as to Municipal Law. A decided unanimity of opinion among authors as to the reason or justice of a particular usage is strong evidence of its general acceptance as a rule of Interna- tional Law. " "Writers on International Law, however, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it." ' The Decisions of Municipal Courts upon Questions of International Law. Although the courts of a state have chiefly to do with the decision of questions aris- ing under its own municipal law, they are sometimes called upon to recognize and apply the rules of Inter- national Law in the decision of particular cases. This is found to be necessary when the national character of an individual is drawn in question, or his capacity to perform certain acts ; as to make contracts or to hold or transfer property. In the decision of what are called Prize cases, which is usually an incident of the juris- diction of Admiralty Courts, the law administered is almost exclusively international. The decisions upon 1 Justice Cockburn, in R. vs. Keyn; Stephens, "History of the Criminal Law," vol. ii., p. 41. 24 OUTLINES OF INTERNATIONAL LAW. questions of International Law which have been ren- dered by Marshall and Story in the United States, and by Lord Stowell, Sir Robert Phillimore, and Dr. Lush- ington in England, are of the highest authority, and have been repeatedly cited as precedents in negotia- tion. (f.) The Municipal Law of States. Much informa- tion may be derived from this source upon questions having at once a municipal and an international phase. Such is the case with the subjects of citizenship and naturalization; of neutrality, extradition, and piracy. The army and navy regulations of different states, and the rules adopted by them for the guidance of their diplomatic and consular representatives, throw light upon many questions of international usage. (ff.) General Histories, the Histories of Important Epochs, and the Biographies of Eminent Statesmen. From this source much information may be obtained as to the history of the wars, negotiations, and treaties which have exercised a great, and sometimes decisive, influence upon the mutual relations of states and upon the development of the science of International Law, and, finally, (h.} The Divine Law. The highest standard of eth- ics and morals, and the surest guide of conduct in the affairs of individuals and states. 15. Divisions of International Law. The rules of International Law are susceptible of reference to one or both of two sources : (a.) Those deduced from relations based upon eth- ical or moral principles. To this class belong good faith, humanity, and comity, the faithful observance of treaties and agreements. DEFINITION AND HISTORY. 25 (5.) Those deduced from usage or agreement, and so based upon the consent of nations. Hence International Law is divided into : (1.) The Natural Law of Nations. As men living together in communities are guided in their actions and relations by well-known moral laws, so nations, which are but societies, or aggregates, of men, and the individuals who control and represent them, are guided in their actions by the same moral rules. From this body of ethical principles, governing alike indi- viduals and nations, is deduced the natural law of nations. The code of Christian ethics contained in the New Testament serves at once as a rule of conduct in inter- national relations, and as a standard by which that conduct can be judged, and its inherent rightfulness or wrongfulness determined. (2.) The Positive Law of Nations. " As between na- tion and nation there are no laws properly so called, though there are certain established usages of which the evidence is to be found in the writings of persons who give the relations which have prevailed between nation and nation." ' That body of usages which is deduced from the history of international relations is called the Positive Law of Nations. This branch of the subject is sometimes divided into (a.) The Customary Law of Nations, including those rules which are deduced from usage and precedent. (&.) The Conventional Law of Nations, including those rules which are based upon, or deduced from, the con- 1 Stephens, "History of the Criminal Law of England," vol. i., pp. 88, 34. 26 OUTLINES OF INTERNATIONAL LAW. sent of states as expressed in the treaties and conven- tions entered into by them. 16. Parties to International Law. The parties to International Law are sovereign states. In the fullest acceptation of the term it prevails only among the Christian states of Europe and those originally colo- nized by them in America and elsewhere. This is due to the fact that these states have had a common his- torical development, and recognize the same, or nearly toe same, standards of law and morals. The area over which it operates, however, is slowly extending. Tur- key became a party to it in 1856, and it is steadily gaining recognition in China, Japan, and other Asiatic states, though its acceptance in those countries can never be so complete as in the western nations of Eu- rope and America. References. The history of the science of International Law has been made the subject of treatment by many writers, both Eng- lish and Continental. The earliest English work upon this sub- ject is that of Ward, whose " Enquiry into the Foundation and History of the Law of Nations in Europe" appeared in 1795. Wheaton's " History of the Law of Nations " is the fullest, and in many respects the most satisfactory, work of the kind in the English language. To a certain extent "Ward and Wheaton sup- plement each other. The legal and historical works of Hallam, Freeman, Stephens, Amos, and Maine in English, and of Mornmsen, Ranke, and Ihne in German, have contributed to throw much light upon the history of society and institutions, and it is impossible to understand the development of International Law without some knowledge of the historical development of the states and socie- ties of whose relations with each other International Law is but the record. Most works upon the Law of Nations contain, in their introductory chapters, more or less full accounts of the history of the science. Among them may be mentioned those contained in Halleck, chaps. 1, 2 ; G. F. De Martens, 1-15 ; Philliniore, Intro- DEFINITION AND HISTORY. 27 duction and chaps. 3-9; Heffter, 1-13; Hall, Introduction and p. 2, note ; and Laurent, " fitudes sur 1'Histoire de FHumanitg," liv. ii., chaps. 1-3 ; liv. iii., chaps. 1-4 ; liv. iv., chaps. 1, 2. The pro- found influence exerted by the Roman Law upon the development of the science is now fully appreciated. For a discussion of the question, see Maine, " Ancient Law," pp. 92-108 ; Amos, " Science of Law," pp. 332-341 ; Morey, " Outlines of Roman Law," pp. 207- 214. General Bibliography of the Subject of International Law. For a full bibliography of the subject of International Law, see G. F. De Martens, " Precis du Droit de Gens," pp. 357-441 ; Kliiber, "Droit de Gens," pp. 419-468. For a similar work in English, see Woolsey's " International Law," appendix I, pp. 413-429. CHAPTER II. STATES AND THEIR ESSENTIAL ATTRIBUTES. 1. A state is a society of persons having a perma- nent political organization, and exercising within a certain territory the usual functions of government. The terms state and nation are by no means synon- ymous. The latter involves the idea of a community of race, the former is applied to a society of men or- ganized under some form of government and occupy- ing a fixed territory. A nation may furnish a contin- gent of population to several states. There is a Polish population in Austria, Eussia, and Prussia ; a German population in Prussia and Austria ; on the other hand, the Russian and Ottoman empires include several dis- tinct nationalities. As applied to societies of men, the term state represents an artificial, the term nation a natural, division. In recent times the tendency to reorganize states upon a national basis has been very marked. The movements within the present century which have resulted in quite a large measure of na- tional unity in Germany and Italy are illustrations of this tendency. 2. Sovereignty of a State. The sovereignty of a state is its inherent right to exercise jurisdiction over all questions arising within its territorial limits, and to control and regulate the actions and relations of all its citizens or subjects. 3. Government of a State. The government of a STATES AND THEIR ESSENTIAL ATTRIBUTES. 29 state is the organ through which its sovereign powers are exercised, and through which it maintains inter- course with other states. A constitutional govern- ment is one in which the powers of sovereignty are defined and limited in accordance with the principles of a fundamental law called a constitution. ISTone of the modern Christian states that acknowledge the sanc- tions of International Law can be said to be absolutely without a constitution of some sort. There may be no substantial guarantees of individual right or of per- sonal freedom ; indeed, such rights may not exist, or may be restricted within very narrow limits. It may be a formal written instrument, as in the United States ; it may be in great part unwritten^ as is the case of the British constitution ; or, as in many Continental states of Europe, it may be embodied in the municipal law, from which those principles which are of a fundamen- tal character may be deduced and determined. In some form it must exist. Without such a body of fundamental principles no modern government could be carried on. 4. Classification of Governments. Governments are classified according to the source of sovereign power, or the manner in which it is exercised in each. A monarchy is a government in which the sovereign powers are concentrated in a single person. An abso- lute monarchy is one in which the concentration of sovereign powers is real. A limited monarchy is one in which the royal authority is restricted in its exer- cise, usually by representative institutions of some kind. These restrictions may be so extensive in char- acter as to reduce the sovereign to the condition of an hereditary executive. This is the case in England. 30 OUTLINES OF INTERNATIONAL LAW. An Aristocracy is a government in which the sov- ereign powers are held to reside in a class. If the ruling class constitutes a small proportion of the population the resulting government is called an oli- garchy. A Democracy is a government in which the sovereign powers are held to reside in all the people, and are ex- ercised by them directly. A Republic, or, as it is sometimes called, a Demo- cratic Republic, is a government in which the sovereign power resides in the people, but is exercised by repre- sentatives elected by them for that purpose. Classification of the Sovereign Powers, The powers of sovereignty are susceptible of classification, and are usually arranged under three heads executive, legis- lative, and judicial. The amount of influence and the degree of independence possessed by each department depends, in any particular case, upon the constitution of the state. It can only be said that the distribution of powers varies greatly in different states, no two ex- actly resembling each other in this respect. 1 5. Governments are again classified, according to the opinion or belief of the person using the term, into governments de facto and de jure. A de facto govern- ment is one actually existing in a state, and for the time possessing sufficient strength to exercise sovereign powers. Thus the de facto government in France, in 1792, was that carried on by the National Convention. A de jure government is one which the person using 1 The most successful modern experiments in government, how- ever, have been those in which these departments exist, and are constituted in such a manner that each acts as a check upon the povjer and jurisdiction of the others. STATES AND THEIR ESSENTIAL ATTRIBUTES. 31 the term believes to be the rightful government of the state. It may or may not be in enjoyment of the power of sovereignty. Thus, in 1792, Austria regard- ed the government of Louis XVI. as the de jure gov- ernment of France. From the standpoint of Interna- tional Law the term government is usually applied to the de facto government of a state, and such gov- ernments are generally recognized in fact, if not in name. 6. The Essential Attributes of Sovereignty. The at- tributes which are essential to the conception of a sov- ereign state are three in number Sovereignty, Inde- pendence, and Equality. The term Sovereignty has already been defined. It is the inherent right of a state to exercise jurisdiction over all questions arising within its territorial limits, and to control and regulate the actions and relations of all its citizens or subjects. The conception of Independence is included in that of sovereignty. It involves an immunity from all interference in the internal affairs of a state, and a corresponding obligation to abstain from interfering in the internal concerns of other sovereign states. It has been seen that a state possesses a certain num- ber of sovereign rights and powers. These rights are possessed in precisely the same number and to the same degree by every sovereign state. This is called the Equality of States. It is not to be inferred from this definition that all states are equal in dignity, impor- tance, or power. It is only asserted that each state possesses the same number of sovereign rights and powers, and each to the same degree that they are pos- sessed by every other state. For example : England 32 OUTLINES OF INTERNATIONAL LAW. and Portugal have the same right to borrow money, to send ambassadors, and to make treaties of alliance. But whether one can borrow money at a lower rate of interest than the other, whether the ambassadors of both powers at Berlin have the same influence, and whether an alliance with one will be as advantageous as with the other, are questions that depend upon the financial resources, political influence, and military power of each state, which are all of them very un- equal. A Sovereign State is one which retains and exercises all of its essential attributes of sovereignty, which has parted with none of them, but retains them all unim- paired. Russia, France, England, China, and Japan are sovereign states. A Dependent, or Semi-sovereign State, is one which has lost or surrendered some of its essential attributes of sovereignty, or which was not endowed with per- fect sovereign rights when it was constituted a state. The Ionian Islands, placed by the Treaty of Paris un- der the protection of Great Britain, are cited by Kliiber as a perfect example of a semi-sovereign state. l 7. A Confederation is an artificial state, resulting from the more or less complete union of two or more states. This involves the temporary or permanent sur- render of some sovereign rights on the part of each of the confederated states to the artificial state created by the treaty of union, or constitution of the confed- eracy. The number and importance of the sovereign rights surrendered by the component states will deter- mine the character and strength of the confederacy. 1 Phillimore, vol. i., p. 100. STATES AND THEIR ESSENTIAL ATTRIBUTES. 33 The United States, under the Articles of Confedera- tion, the Holy Eoman Empire, the Zollverein, and the German Confederation, as reorganized in 1815, are ex- amples of loose confederations. The present German Empire is a stronger confederation. The Swiss Con- federation, the union of England and Scotland, the United States under the present Constitution, are ex- amples of close political union. Rule for Determining the Strength of a Confedera- tion or Union. Between these extremes there may exist many kinds of confederacies. To determine the political strength of any particular confederation its constitution must be examined, and an accurate account taken of the powers surrendered and retained by each component state. If the power of making political treaties, of sending and receiving ambassadors, and of separate peace or war are vested in the central gov- ernment, the confederacy is said to be close or strong. If a considerable number of these powers are retained by the component states the confederation is said to be loose or weak. 8. Hight of a State to Change its Constitution and Form of Government. As an incident of its sover- eignty and independence, a state has a perfect right to make such changes in its constitution, government, and laws as it may deem expedient or desirable. These changes may be so radical in character as to effect a complete change in its form of government. The po- sition of such a state in International Law is in no way affected by such changes, so long as they are strictly internal in character. The new government succeeds to the powers and privileges, and becomes responsible for the obligations, of the government which has been 3 34 OUTLINES OF INTERNATIONAL LAW. displaced. None of these can be abrogated or in any way impaired. This follows from the principle that a state is a continuing body, capable of enjoying rights, of exercising sovereign powers, of incurring obligations and of performing duties. Of this body the govern- ment is the life, or moving force. A change of gov- ernment, therefore, is but a change in the character of this moving force. It gives the state no new powers or rights, it absolves it from none of its duties or obliga- tions. These ever remain unchanged. 9. Acquisition of Sovereignty. Of the states now acknowledged as sovereign, in the civilized world, some were in existence when International Law began to as- sume importance as a separate science. Others have since been added to the family of states. A new state may come into being in one of two ways. (a.} By separation from an existing state or states ; and this may be brought about : (1) By peaceful meth- ods, with the consent of the parent state, or with the mutual consent of the states from which the new state derives its territory and population ; (2) By violent or hostile means, as by revolution or conquest. (5.) By the combination of two or more states into a permanent union, the component states abandoning their identity completely, or surrendering permanently most of their sovereign powers. 10. A state may lose a part or the whole of its sov- ereign character. It may lose its identity completely, by absorption in another state ; by peaceful methods of confederation or union, or by the hostile methods of conquest or subjugation. Sovereign rights and obliga- tions, however, can never be destroj^ed. If they cease to be exercised by one state they pass with the popu- STATES AND THEIR ESSENTIAL ATTRIBUTES. 35 lation and territory into the corporate existence of an- other, which assumes them, and, while enjoying the rights, must recognize and be bound by the obliga- tions. 11. Territory. It has already been seen that a state exercises its sovereign powers within a certain terri- tory. From the definition of a sovereign state it is seen that the only possible line of demarcation that can exist between sovereign states is a territorial line. Where the sovereignty of one state begins that of an- other ends. The territory of a state is that portion of the earth's surface over which a state exercises sovereign jurisdic- tion, and within which that jurisdiction is supreme. The boundaries of a state may be natural, consisting of mountains, rivers, or the coasts of oceans, seas, gulfs, or bays ; or artificial, consisting of parallels of latitude or longitude, or lines described in treaties by their di- rection and length between terminal points. They are usually established by accurate surveys, and marked in position by permanent monuments. Rivers as Boundaries. When a river forms the boundary between two states the line of demarcation follows the mid-channel. If the channel changes, there is some difference of opinion as to whether the boun- dary changes with it, or remains in the ancient bed. In most cases that have arisen the rules of the Ro- man Law have prevailed in the settlement of the dis- puted question of boundary. Should the change be important the question would probably be adjusted by agreement among the interested states. Where rivers separate and traverse the territory of a num- ber of states the question of boundary is necessarily 36 OUTLINES OF INTERNATIONAL LAW. affected by considerations of greater intricacy and difficulty having to do with their improvement and navigation. 1 In recent times the tendency has been to remove all restrictions upon the navigation of such rivers, and to throw them open to general commerce. These changes have been effected by treaties, to which the states interested in the navigation of particular rivers have been parties. In accordance with their stipulations uniform rates of toll have been established, unnecessary and burdensome charges have been abol- ished or modified, and the expenses of maintenance and improvement have been equitably assessed upon the riparian powers. To defray these expenses various expedients have been resorted to. In some of the earlier treaties the revenues derived from tolls were appropriated to the purpose. Later treaties provide for an apportionment of the expense of improvement among the riparian powers, and for the removal of all restrictions in the way of tolls and dues from the navi- gation of the river. In this way most of the navigable rivers of Europe, that are not entirely included within the territory of a single state, have been thrown open to general commercial use. What Constitutes the Territory of a State. All bodies of water, all inland seas, gulfs, lakes, and rivers lying entirely within the external boundaries of a state, are portions of its territory, and are subject to its jurisdic- tion. All littoral islands belong to the state to which they are adjacent. All gulfs and bays, river mouths 1 In this respect an important difference was mafle in the Roman Law between rivers and the sea. The former were regarded as a portion of the public property of the state; the navigation of the lat- ter was held to be the common right of all. Phillimore, vol. i., p. 189. STATES AND THEIR ESSENTIAL ATTRIBUTES. 37 and estuaries included, or almost included, by the land, are also regarded as a part of the territory of a state. If the headlands be remote, the rule of possession is not yet fully determined, for the reason that no inter- national understanding has as yet been reached as to the distance between headlands which shall determine ownership and jurisdiction in all cases. As claims are advanced to jurisdiction over particular bodies of wa- ter they are usually adjusted by the states locally in- terested, and their decision, if just and equitable, is ac- quiesced in by other nations. 1 Jurisdiction over Closed Seas. The question of ju- risdiction over many such partly included bodies of water, sometimes called closed seas, has already been decided. The Chesapeake and Delaware bays are rec- ognized as parts of the territory of the United States, Hudson's Bay and the Irish Sea as British territory ; the Caspian Sea belongs to Russia, Lake Michigan to the United States. The Black Sea, before Russia ob- tained a foothold upon it, formed part of the territo- ries of the Ottoman Porte ; it is now subject to the joint jurisdiction of Turkey and Russia. The Baltic is acknowledged to have the character of a closed sea (and to be subject to the control of the powers sur- rounding it), certainly to the extent of guaranteeing it against acts of belligerency, when the powers within whose territory it lies are at peace. Rights of Ownership and Jurisdiction in the Case of Straits. The rights of possession and jurisdiction in the case of narrow straits and passes depend upon the ownership of the territory separated by them. The 1 Halleck, vol. i., p. 140. 38 OUTLINES OF INTERNATIONAL LAW. right of navigating them depends upon the character of the bodies of water which they connect. If the connected seas are open to general commercial naviga- tion, the right extends to, and includes, the use of the strait as a necessary means of communication. This is sometimes called the right of innocent passage. The Strait of Gibraltar is free, because the Atlantic Ocean and Mediterranean Sea are open to the commerce of all nations. A similar rule applies to the Bosphorus, the Sea of Marmora, and the Dardanelles, connecting the Black and Mediterranean seas, subject to the re- strictions upon the passage of war vessels which are contained in the treaties of 1856 and 1871. The Danish Sound Dues. The peculiar claim of Denmark to jurisdiction over the strait connecting the ISTorth and Baltic seas was long a fruitful source of complaint to all commercial nations. These claims were exercised in the form of a toll, or tax, called Sound Dues, levied upon all shipping which passed the strait in either direction. They were based, in part, upon immemorial prescription, and in part upon the expense incurred by Denmark in the maintenance of lights and buoys in the narrow and dangerous passage. The question of the sound dues was settled in 1857 by a treaty entered into between Denmark and the great European powers. " The right of Denmark to levy these dues was not distinctly recognized, but com- pensation was made to her by the payment of a capital sum, on the ground of indemnity for maintaining lights and buoys, which Denmark stipulated to maintain, and levy no further duties." l As the treaty of 1857 dealt 1 Phillimore, vol. i., p. 217. STATES AND THEIR ESSENTIAL ATTRIBUTES. 39 with other questions, of strictly European concern, and to which the United States was unwilling to become a party, a separate treaty was entered into between that power and Denmark by which, in consideration of the payment of a lump sum, the shipping of the United States was to be exempted from similar levies in the future. 1 If the territory separated by the waters of a narrow strait belongs to a single state, the right of jurisdiction over the separating strait is conceded to belong to the owner of the territory. The Strait of Messina, sepa- rating the island of Sicily from the Italian mainland, be- longs to Italy, the Bosphorus and Dardanelles to Tur- key, the Great and Little Belt and the Sound to Den- mark. If the territory separated by the waters of the strait belongs to different states the strait belongs in part to each power. The line of territorial demarca- tion is determined as in the case of boundary rivers, and the jurisdiction of the adjacent states is separated in the same manner. Ship Canals. Artificial ways of communication, like ship canals, however important their construction may prove to be in its effects upon commerce, can ac- quire interest from the point of view of International Law only when they have been made the subject of treaty stipulation. No existing rules apply to them, or can be made to apply, by any process of construction. They are not arms of the sea, nor straits, nor riv- ers. Nor are they natural channels of trade or com- merce over which all nations have the right of inno- cent passage. Their neutrality in war is the most se- 1 "Treaties and Conventions of the United States," p. 213. 40 OUTLINES OF INTERNATIONAL LAW. rious question that can arise with respect to them, and this can only be secured by a guarantee of the great powers, or by a sufficient number of them to secure the observance of such guarantee. The neutrality of the proposed Nicaragua Canal is guaranteed by Great Britain and the United States, 1 that of the Panama Canal by the latter power only." The neutrality of the Suez Canal may be made the subject of a similar guar- antee; at present, however, its neutrality is not se- cured a situation which may lead to serious compli- cations in the future. Jurisdiction over a Portion of Coast Sea. Although the strict territorial jurisdiction of a state ends at the low- water mark, where the high seas begin, its claim to exercise jurisdiction over a strip of sea three miles in width has long been generally recognized. Over this belt of coast sea, called the Marine League, a state is acknowledged to have complete jurisdiction as against other states. Whether its courts can assume jurisdic- tion over it or not, will depend upon its municipal laws. This peculiar jurisdiction is acknowledged to guarantee immunity from acts of belligerency between ships of nations other than that to which the coast sea belongs ; to enable a state to carry into effect its mari- time laws and customs regulations ; to secure protec- tion to the inhabitants of the coast especially to those engaged in coast fisheries, and to provide for an ade- quate system of coast defence. As one of the chief reasons for recognizing jurisdiction over the three-mile limit has to do with questions of sea-coast defence, it 1 "Treaties and Conventions of the United States," p. 378. 9 Ibid., p. 187. STATES AND THEIR ESSENTIAL ATTRIBUTES. 4^ seems proper that the width of this zone should in- crease, as the range of modern artillery increases. 1 A ship entering or passing through this strip of coast sea, in the prosecution of a voyage, is not regarded as having entered the territory of the adjacent state ; nor is it subject to the rules of navigation which are sanctioned by that state, and enforced against its own shipping. The municipal laws of many states also assume a limited jurisdiction over a wider zone of coast sea in defining offences against their revenue laws. This right has never been generally recognized, however, and is only assumed, or authorized," for fiscal and de- fensive purposes. Case of the Franconia. Considerable light has been thrown upon the exact character and extent of the ju- risdiction of a state over the sea included within the three-mile limit by the case of the Franconia. 3 The Franconia was a German steamer, commanded by Keyn, a foreigner, which, in the prosecution of a for- eign voyage, passed within three miles of the English coast. While within the three-mile limit the Fran- conia collided with an English vessel and sunk her, causing the death of one of her passengers. Some time later Captain Keyn came within English jurisdic- tion, and was arrested and tried for manslaughter. He was convicted of that offence in the Central Criminal Court, but his case was carried up, on a question of jurisdiction, to the Court of Appeals. 1 Ortolan, in his " Diplomatie de la Mer," liv. ii., chap. 8, and Hal- leek, chap, iv., 13, advocate this view. For an opposite opinion, see Boyd's Wheaton, p. 239. 2 Halleck, vol. i., pp. 137, 138. 8 Regina vs. Keyn, 2 Exch. Div., pp. 202-205. 42 OUTLINES OF INTERNATIONAL LAW. It was there held by a majority of the judges that, in so far as the court that had tried Keyn was con- cerned, the crime had been committed upon a for- eign ship, on the high seas, and in the prosecution of a foreign voyage. The Central Criminal Court, therefore had no jurisdiction in the case. The view of the majority was, that in so far as other states were concerned, England had jurisdiction, for all purposes, over that portion of the high seas included within the three-mile limit ; but, as the law of England stood at that time, jurisdiction over crimes committed within that limit had not been bestowed by Parliament upon any of the courts of the kingdom. Their criminal ju- risdiction ended at the low-water mark, and crimes beyond that limit were therefore committed out of their jurisdiction.' The High Seas. This term is applied to the general ocean surface of the globe. It begins at the low-water mark, where, by legal presumption, the land is held to end. Upon the high seas all nations have equal rights. The privilege of sailing over them or of fishing in them belongs equally to all. No state can include them with- 1 Soon after this decision was announced, Parliament, by the Ter- ritorial Waters Jurisdiction Act (40 and 41 Vic., chap. 73) assumed jurisdiction over the coast sea to the distance of a marine league, and bestowed it upon the Courts of Admiralty. This was done with a proviso that "no proceeding should be had in any case under the act unless with the consent of one of Her Majesty's secretaries of state, and on his certificate that the institution of the proceedings is, in his opinion, necessary." This reservation was doubtless intended to prevent a conflict between the execu- tive and judicial departments of the government in the event of a case arising under the act of such a nature as to involve con- siderations of an international character. STATES AND THEIR ESSENTIAL ATTRIBUTES. 43 in its territory, or extend its dominion over the whole or any part of the high seas. The doctrine of the absolute freedom of the high seas is of relatively recent growth. In former times claims were made to exclusive jurisdiction over large portions of the sea, but none of them are now main- tained. Claims to Exclusive Dominion. In the early part of the sixteenth century extravagant claims to domin- ion were advanced by Spain and Portugal, based upon their maritime discoveries. As these claims were of the most conflicting character, a controversy arose, which was submitted to Pope Alexander VI. for decision. He decreed that all those parts of the world which were not then in secure possession of any Christian prince should be divided between Spain and Portugal. A meridian line was established through a point one hundred leagues west of the Azores, as a boundary be- tween the possessions of the two powers ; all the ter- ritory to the west of the line was decreed to Spain, and all to the east of the same line to Portugal. Un- der this authority, which seems to have had interna- tional recognition, Portugal forbade all commerce with the East Indies and the west coast of Africa ; Spain, claiming the Pacific Ocean and the Caribbean Sea as Spanish territory, forbade all commerce with Mexico, the west coast of North and South America, and the isknds of the Pacific. England at one time claimed that its jurisdiction over the narrow seas ended at the coasts of France and the Netherlands. This claim was resisted, espe- cially by the Dutch, and so successfully that it was largely reduced in importance, and at the close of the 44 OUTLINES OF INTERNATIONAL LAW. seventeenth, century finally abandoned. Russia, in 1822, laid claim to exclusive jurisdiction over that part of the Pacific Ocean lying north of the fifty-first de- gree of north latitude, on the ground that it possessed the shores of that sea, on both continents, beyond that limit, and so had the right to restrict commerce with the coast inhabitants. England and the United States entered vigorous protests against the right claimed by Russia, as contrary to the principles of International Law, and it Avas formally withdrawn in 1824. 12. Rights of River Navigation. The liberal meth- ods now so generally applied to the solution of ques- tions having to do with the treatment of navigable rivers date from the Congress and Treaty of Vienna, in 1815. On the few previous occasions in which such questions had been made the subject of treaty stipula- tion the right of joint or public navigation, if recog- nized at all, had been hampered with needless and burdensome restrictions, originating in the mutual jealousy of the interested parties, and but little cal- culated to favor the development of interstate com- merce. The Treaty of Vienna, however, inaugurated a marked change in this respect. The 16th annexe of that instrument contains a body of fundamental prin- ciples, in accordance with which detailed rules were to be prepared, by the states locally interested, for the regulation of navigation of six important European rivers the Rhine, Main, Moselle, Neckar, Meuse, and Scheldt. The 109th article declares that these streams are thrown open to the commerce of all nations from the points where they become navigable to the sea. At different times between 1815 and 1856 arrange- ments, conceived in the same liberal spirit, were en- STATES AND THEIR ESSENTIAL ATTRIBUTES. 4.5 tered into with, reference to the Elbe, Vistula, Weser, and Po ; and, in 1835, by a treaty between Spain and Portugal, the navigation of the Douro was declared common to the subjects of both powers. Case of the Danube. As Turkey was not a party to International Law at the time of the negotiation of the Treaty of Vienna, the provisions of that instrument were not extended to the Danube. The first attempt to regulate the navigation of that river is found in the Treaty of Bucharest, entered into between Turkey and Russia in 1812. By the fourth article of that treaty it was agreed that the boundary line between the two states should follow the left bank of the Danube from its junction with the Pruth to its mouth at Kilia, on the Black Sea ; and the navigation of both rivers was declared to be free to the subjects of the signatory powers. The Danube enters the Black Sea through three principal channels. The most northern of these, which is known as the Kilian mouth, carries by far the greater part of its waters to the sea, and is the one best adapted to purposes of navigation. The central, or Sulina channel, discharges but a small part of the vol- ume of the stream. The southern, or St. George's channel, carrying about one third of the volume of the river, reaches the sea, through several mouths, at a point about twenty English miles to the south of the Sulina channel. By the Treaty of Adrianople, in 1815, to which Turkey and Russia were the contracting par- ties, the Sulina mouth, which had been left in the pos- session of Turkey by the former treaty, was acquired by Russia, that power binding itself to maintain its channel at a sufficient depth to admit vessels at all times. This stipulation does not seem to have been 46 OUTLINES OF INTERNATIONAL LAW. rigidly observed by Russia, and its failure to maintain a navigable channel was made the subject of remon strance, at different times, by several European pow- ers. ISTo change was made in the existing treaties, however, and the question remained in this condition until the close of the Crimean war. By the Treaty of Paris, in 1856, to which instru- ment Turkey was a signatory party, the Danube was placed upon the same footing as the other great rivers of Europe. A commission was created for the pur- pose of erecting and maintaining such engineering works at the mouth of the river as were, or might be- come, necessary in the interest of navigation. The commission began its labors in 1857. The Sulina mouth was chosen as the one most susceptible of improvement, and suitable works were undertaken for its betterment. The funds for this purpose were supplied by Turkey during the years between 1857 and 1860 ; from 1860 onward they were obtained by a tax levied upon all vessels entering the river. The Treaty of March 13, 1871, extended the operations of the Danubian Com- mission for a further period of twelve years ; and a new and significant step was taken by an agreement of the powers to a declaration guaranteeing the per- manent neutrality of the works of improvement at the mouth of the river. The cases of the Mississippi and St. Lawrence rivers, in the United States, gave rise to much controversial discussion. Case of the Mississippi. The Peace of Paris, in 1763, brought to a close the long series of wars for do- minion between England and France, to which Spain had become a party, as an ally of France, in 1761. STATES AND THEIR ESSENTIAL ATTRIBUTES. 47 By the Treaty of Paris the Mississippi Biver had been recognized as the boundary between the possessions of England and France in America, from its source to its junction with the Iberville, an eastern tributary, con- necting it with the lake system of its lower basin. From that point the boundary line followed the course of the Iberville, through lakes Pontchartrain and Mau- repas, to the Gulf of Mexico. The line of the Iber- ville separated Florida and Louisiana, which were ced- ed by the treaty, the former to England and the latter to Spain, and the right of navigating the Mississippi was secured to the subjects of Great Britain from its source to the sea. The treaty of peace between England and the United States, which terminated the war of the Revolution, was signed on Sept. 3, 1783. On the same day a treaty was negotiated between England and Spain, by which the provinces of East and "West Florida were retroceded to Spain. France ceded to Spain a portion of the province of Louisiana, thus giving to the latter power undisputed control over the lower waters of the river, from its mouth to its intersection by the thirty- first parallel of north latitude, the course of the river north of that point forming the boundary between the United States and the French possessions in ]Sbrth America. This state of affairs gave rise to a contro- versy between Spain and the United States, as to the right of citizens of the latter power to navigate that part of the river lying wholly within Spanish terri- tory. On the part of the United States it was claimed that the Treaty of 1763, between England and Spain, had given to the subjects of Great Britain the right to nav- 48 OUTLINES OF INTERNATIONAL LAW. igate the river from its source to the sea. This treaty had, in fact, created a territorial servitude, which had not been extinguished or repudiated by either of the treaties of 1763 or 1783. It was fair to presume, there- fore, that it still existed, and that the subsequent trans- fer of territory on the east bank of the river had been made subject to the right of navigation Avhich was then enjoyed by the inhabitants of its upper waters. A provision of the Roman Law was cited in behalf of the United States, by which all navigable rivers were held to be " so far public property that a free passage over them was open to everybody, and the use of their banks for the anchorage of vessels, lading and unlad- ing cargo, and acts of the like kind, was regarded as incapable of restriction by any right of private do- main." 1 It was also claimed, on the part of the United States, that the Mississippi River furnished the only practicable outlet to the sea for all the products of the upper valley. The claim, based upon this fact, was held by the American negotiators to be of suffi- cient importance to constitute a perfect right at Inter- national Law. These claims were rejected by Spain, whose right to control the navigation of the lower courses of the river was based upon the fact of its territorial jurisdiction. The position assumed by the United States was not regarded as a sound one in ac- cordance with the provisions of International Law as then understood, and the controversy was brought to an end by the Treaty of Oct. 20, 1795, between the United States and Spain. By the terms of that treaty the navigation of the Mississippi was to be free to both 1 Phillimore, vol. i., p. 189. STATES AND THEIR ESSENTIAL ATTRIBUTES. 49 parties throughout its entire extent. The Americans were to enjoy a right of deposit at Kew Orleans for three years, at the end of which period either that privilege was to be continued, or an equivalent estab- lishment was to be assigned them at some other con- venient point on the banks of the Lower Mississippi. ' The question of navigating this important stream w finally settled by the purchase of Louisiana, in 1803, and of Florida in 1819, which placed the river for its i.nihv !;-ngth within the territorial jurisdiction of the ITnited {States. Case of the St. Lawrence. The case of the St. Law- rence presents many considerations similar in charac- ter to those discussed in the case of the Mississippi. Its navigation was a matter of great importance to the United States for the reason that it furnished, at that time, the only outlet to the sea for commerce orig- inating in the great lake system of JS^orth America. These lakes, with the exception of Lake Michigan, which lies wholly within the territory of the United States, lie upon, and form a part of, the boundary be- tween the United States and the British possessions in Xorth America. From the head of Lake Superior to the source of the St. Lawrence in Lake Ontario, and along the course of that river to its intersection by the northern boundary of the United States, the right of navigation was determined, beyond question, by the universally accepted rules of International Law, and be- longed jointly to the two powers. The lower course of the river, from its intersection by the forty-fifth par- allel of north latitude to its mouth in the Gulf of St. 1 Hildreth, "History of the United States," vol. iv., p. 569. 4 50 OUTLINES OF INTERNATIONAL LAW. Lawrence, lay entirely within the British territory. The question between the two governments, therefore, had exclusively to do with the right of navigation of the British, or lower, section of the river. On the part of the United States it was contended, as in the case of the Mississippi, that, as the lower course of the river formed the only outlet for com- merce arising in a large portion of the territory of the United States which lay upon the upper lakes, its nav- igation became a perfect right at International Law, and could be claimed, as a matter of necessity, by the state whose territory lay upon its upper waters. The right of navigating the Mississippi, stipulated for by England in a precisely similar case, was cited by the United States government in support of its view, as was the action of the Congress of Vienna, to which England had been a party, in throwing open a num- ber of European rivers to general navigation in cases similar to those of the St. Lawrence and Mississippi. It was also contended, in behalf of the United States, that, on account of the character and importance of the bodies of water connected by it, the St. Law- rence should be regarded as a strait, rather than as a river, and that the question of its navigation should be determined, as in the case of straits, rather by the right to navigate the bodies of w r ater connected by it than by the ownership of the banks along its lower course. On the part of Great Britain the validity of the first of the positions assumed by the United States was de- nied, as not warranted by International Law. The con- tention was also made that, wherever such concessions had been granted, they had been based upon treaty stipulations. The liberal arrangements in regard to STATES AND THEIR ESSENTIAL ATTRIBUTES. 51 the joint or general right of river navigation made by the Congress of Vienna, and recognized in subsequent treaties, were based upon the conventional law of na- tions, and could be withdrawn or modified at any time. To the second claim, that the river should be regarded as a strait, it was replied that the application of such a rule must be general and international, and not local and particular. If it applied to the case of the St. Lawrence, it applied with equal force to the Hudson and Mississippi, and to the artificial channels in !New York and Ohio which formed a part of the line of water communication between the great lakes and the sea. Unless, therefore, the United States was pre- pared to open these artificial channels to general navi- gation, the British government must decline to so re- gard that portion of the St. Lawrence which lay -en- tirely within its territorial jurisdiction. The discussion, though ably conducted on both sides, led to no results of immediate or practical importance. The question of navigation was settled by the Reciprocity Treaty of 1854 ; by which, in consideration of certain concessions to British subjects in the matter of navigating Lake Michigan, the right of navigation of the St. Lawrence and the Canadian canals, forming a part of the sys- tem of communication between the great lakes and the sea, was conceded to citizens of the United States. 1 In this connection it is well to observe that the con- 1 Many of the navigable rivers of South America have been thrown open to general navigation (Phillimore, vol. L, p. 209; Lawrence's Wheaton, pp. 362-365). For a full discussion of the controversy be- tween England and the United States on the subject of the St. Law- rence, see Phillimore, vol. i., pp. 204-209; Boyd's Wheaton, pp.266- 270; Lawrence's Wheaton, pp. 356-362; Halleck, vol. i., pp. 150-152. 52 OUTLINES OF INTERNATIONAL LAW. cessions thus far obtained in the matter of throwing open rivers to general navigation, however liberal they may have been, are all of them based upon treaty stip- ulations. In none of these treaties is the question treat- ed as one of amending or modifying the existing rules of International Law upon the subject of river naviga- tion. Such boundary rivers, therefore, as have not thus far been made the subject of treaty stipulation, are subject, in all questions affecting their ownership and navigation, to the rules of International Law as they existed in 1815. No claim can be advanced to their navigation based upon the treaties above referred to, as none of them have changed or amended the existing rules of International Law. 1 SERVITUDES. 13. Origin and Application of the Term. The term servitude is borrowed from the Roman Law, and is ap- plied in the international relations of states to express an obligation upon the part of one state to permit a thing to be done or a right to be enjoyed by another state within or upon its territory. The thing done, or the right enjoyed, however, must not be sufficient in amount or importance to constitute a restriction upon the sovereignty or independence of the servient or sub- ordinate state. 2 The state enjoying the benefit or priv- 1 "La Liberte de la Navigation Fluviale." E. Englehardt, "Re- vue de Droit International," tome xi. (1872), p. 363. 2 Under the name of easements the principle of servitudes is rec- ognized by the common law, with this difference, however, that whereas a servitude could have been imposed upon an individual or his property by the sovereign authority of the state, an easement must, according to the common law, originate in an agreement between the interested parties. STATES AND THEIR ESSENTIAL ATTRIBUTES. 53 ilege of the servitude is called the dominant state. The state lying under the obligation involved is called the servient state. The existence of a servitude is not in- consistent with entire sovereignty and independence on the part of the servient state. The following ex- amples are illustrations of servitudes: Suppose two states, A and B, to be separated by a river ; A may lie under a servitude to B not to construct works of im- provement upon the boundary river which shall injure the opposite bank. Suppose two states, C and D, to be situated, one above the other, upon the course of a navi- gable river, the mouth and lower waters being situated in the territory of C ; C may lie under a servitude to D of allowing its citizens the privilege of navigating the river to the sea ; D may Me under a servitude to C not to use the banks of the river within the terri- tory of C for the purpose of loading and unloading cargoes. How Created and Terminated. Servitudes may ex- ist by immemorial prescription, such existence being tacitly or expressly recognized by other states. Such, in great part, was the case of the Danish Sound Dues. They may also be created by treaty, and may be amended, increased, or modified in the same manner. They may be extinguished by treaty, by non-user, and in some cases by forcible denial of the obligation. They must consist in an obligation to allow a thing to be done, or a right to be exercised, or in refraining from doing a thing ; they can never consist in an obli- gation to do a thing. 1 They are further classified into positive and negative. Positive servitudes consist in 1 Phillimore, vol. i., p. 236; Morey, "Outlines of Roman Law," pp. 288-292. 54 OUTLINES OF INTERNATIONAL LAW. allowing a thing to be done, or a right exercised upon the territory of the servient state. Negative servitudes consist in refraining from the exercise of rights by a servient state. Examples of Servitudes, The following examples of servitudes created by treaty are cited by Phillimore : 1 (1.) In the Treaty of Utrecht, of 1713, between Eng- land and France, it was agreed on the part of France that the Stuart pretenders should not be permitted to reside in French territory. (2.) In the Treaty of Utrecht, between Spain and England, the possession of Gibraltar by the latter power was confirmed by Spain on condition that Moors and Jews should not be permitted to reside there. (3.) The Treaty of Paris, of 1814, provided that Ant- werp was to be an exclusively commercial port. (4.) By the Treaty of 1831 certain Belgian fortresses were to be demolished by Dec. 1, 1833. THE RIGHT OF JURISDICTION. 14. Right of Territorial Jurisdiction. From the def- inition of a sovereign state it follows that " the jurisdic- tion of a nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limita- tion not imposed by itself. Any restriction upon it deriving validity from any external source would im- ply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. 2 Classification of Jurisdictional Powers. This juris- 1 Phillimore, vol. i., p. 236. 3 Case of The Exchange, 7 Cranch, 116. STATES AND THEIR ESSENTIAL ATTRIBUTES. 55 diction extends to all subjects and over all persons within its territorial limits, it matters not whether those persons be native born, or naturalized citizens, or aliens. It involves the right of maintaining any form of government, of administering that government in accordance with its own views and methods, and of changing it, whenever such a change seems necessary or desirable. It implies the right of classifying the sovereign powers, and of distributing them among sev- eral departments, or of concentrating all of them in the hands of a single ruler or sovereign. It involves an immunity from interference, from external sources, in the enjoyment and exercise of its sovereign powers, and a corresponding obligation to abstain from similar interference in the internal affairs of other states. Right of Jurisdiction^ in whom Vested. The right of jurisdiction is inherent in the artificial body politic which we call the state. It is exercised, like other sov- ereign powers, through the government of the state, and the various rights of jurisdiction are usually clas- sified and distributed among the different departments of government. The jurisdictional powers of a state are usually divided into : (a.) The Power to Make, Alter, and Repeal Laws. This is called the legislative department. In states which recognize the people as the ultimate source of sovereignty this department stands first in power and importance. It expresses, more directly than any oth- er, the sovereign will upon any question coming within its jurisdiction. It determines the policy of the state upon all matters internal and external, and can change that policy at will. At the other extreme He states in which the sovereign authority is held to reside in the 56 OUTLINES OF INTERNATIONAL LAW. person of a single ruler or sovereign. Here the legis- lative department does not exist, and the powers usu- ally exercised by it are vested in the hands of the sovereign or executive. (&.) The Power to Enforce and Execute the Laws. This is called the executive department. In states which recognize the principle of popular sovereignty the ex- ecutive himself represents the people in the exercise of that class of governmental powers which has to do with carrying the laws into effect. He is responsible to them for the manner in which he performs his duty, and either directly or through his subordinates repre- sents them in all intercourse with foreign powers. In the exercise of the powers which are peculiar to his office he is independent of the other departments of the government. He also represents in the highest degree the dignity and majesty of the state ; an insult to him is an insult to the state, and attacks directed against his person or authority are usually given the character of treason. (c.) The Power to Apply the Laws in the Decision of Cases Arising under them. This is called ihe judicial power. The jurisdiction of the courts of a state is fur- ther classified into civil and criminal. The former extends to the decision of all suits or controversies arising between individuals out of contracts, claims, and services, as well as from torts and injuries. The latter includes the power to try and punish all offences against the state or its sovereign representative, or against society or the individuals who compose it. Exclusive Jurisdiction, where Exercised. This right of jurisdiction is exclusive in all cases arising within the territorial limits of a state, or upon its public or STATES AND THEIR ESSENTIAL ATTRIBUTES. 57 private vessels on the high seas. It is of the most comprehensive character, and, within the territorial limits as above described, no offence can be committed, no act be done, no occasion arise for governmental in terference of any kind that will not fall within the ju- risdiction of some branch or department of the gov- ernment of the state, or over which that jurisdiction will not be final and exclusive. Extra-territorial Jurisdiction of a State. Under cer- tain circumstances a state may exercise jurisdiction over its subjects beyond its strict territorial limits. This extension of jurisdiction is sanctioned in the fol- lowing cases : (.) Over the officers and crews of its ships of war, wherever they may be. They are a part of the public armed force of the state, and are governed by a special code of laws and regulations. (&.) Over its merchant vessels on the high seas. The crews of these vessels are subject to the admiralty juris- diction of the state whose register they carry. This extends to all cases of a civil or criminal character oc- curring on the high seas or beyond the jurisdiction of any civilized state. Merchant vessels on the high seas are, for purposes of jurisdiction, acknowledged to be a part of the territory of the state to which they belong, and under whose flag they sail. From this principle it follows that, in time of peace, these ships are exempt from visitation and search by foreign vessels of war, 1 except in strict accordance with treaty stipulations. They are subject to such visitation and examination at sea by public armed vessels of their own nation 1 See case of the Laconia, ' ' United States Foreign Relations," 1879, pp. 415, 432. 58 OUTLINES OF INTERNATIONAL LAW. as is authorized by the municipal law of the state to which they belong. The right of search in time of war is a belligerent right, and will be discussed hereafter. So soon, however, as a merchant ship enters a for- eign port, it is subject in every respect to the municipal laws, and especially to the criminal jurisdiction of the country in which the port is situated. " For any unlaw- ful acts done by her while thus lying in the port of a foreign state, and for all contracts entered into while there, by her master or owners, she is made answerable to the laws of the place. JSTor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemp- tion from the local laws be claimed for them. But the comity and practice of nations have established the rule of International Law that such vessel, so situated, is, for the general purpose of governing and regulating the rights, duties, and obligations of those on board, to be considered as a part of the territory of the nation to which she belongs. It therefore follows, that, with respect to facts happening on board which do not con- cern the tranquillity of the port, or persons foreign to the crew, or acts committed on board while such ves- sel was on the high seas, are not amenable to the ter- ritorial justice. All such matters are justiciable only by the courts of the country to w^hich the vessel be- longs." ' The practice of France in this respect dif- fers from that of most modern nations. She declines to allow her courts to take jurisdiction over crimes committed by one member of the crew upon an- 2 Halleck, vol. i., pp. 190, 191; Masse, "Droit Commercial," tome ii., 31-44. STATES AND THEIR ESSENTIAL ATTRIBUTES. 59 other, on board a foreign merchant vessel in her har- bors. If a French subject be the injured party, how- ever, the French courts will take jurisdiction of the case. (c.) Over its armies in the field, when beyond the limits of its territorial jurisdiction. The officers and enlisted men of the army, like the corresponding per- sons in the navy, are a part of the public armed force, and are governed at home and abroad by a special code of laws and regulations. (d.) Over crimes committed by its subjects in territo- ry occupied by savages, or unoccupied, and not claimed by any civilized power. If this jurisdiction were not assumed such crimes as kidnapping, engaging in the slave trade, etc., would go unpunished. For this rea- son most states, in their municipal laws, provide for their trial and punishment. (.) The Duty of Comity. " There is a set of cour- teous and convenient observances, usually followed in the conduct of states toward each other, too definite, and often too minute and conventional, to make it proper to call them moral principles. The violation or neglect of these is not considered sufficient in itself to justify war, though one state is, by such violation or neglect, often placed in an attitude of avowed ill- will and suspicion toward another state. These ob- servations of courtesy and convenience are said to de- pend on what jurists and statesmen style the comity of nations." a The practice of extradition, the recogni- tion of the principles of Private International Law, the privileges of exterritoriality extended to foreign sov- ereigns and ambassadors, to armies in transit, and to public armed vessels, are all based upon the comity of nations. (c.) The Duty of Intercourse. In the discussion of this duty it is necessary to regard it from two points of view, and to consider, 1st. The duty of a state to enter into relations of intercourse with other states, to send and receive ambassadors, to permit consuls to reside and to perform their duties in its commercial cities, to negotiate treaties, and to permit aliens to travel or reside in its territory. 2d. The duty of com- 1 Halleck, vol. i., p. 407. ' Creasy, p. 36. PERFECT AND IMPERFECT RIGHTS. 95 mercial intercourse, which consists in permitting for- eigners to engage in commerce with its subjects, and to exchange its products for those of other nations. In the former case a nation, by establishing a rule of strict non-intercourse, shuts itself out from being a party to International Law. It declines to be bound by its sanctions, and it cannot of right expect other states to observe them in such casual and irregular in- tercourse as they may have with it. Aliens who enter its territory do so at their peril ; and, as its own citi- zens in foreign parts cannot look to their own govern- ment for protection, many of their wrongs must go unredressed. It is not necessary to discuss the subject further, for the reason that no state now assumes, or has ever assumed, such an attitude of complete isola- tion. It is only necessary to observe, in this connec- tion, that, in proportion as a nation withdraws itself from intercourse with other states, or hampers its in- ternational relations with needless and burdensome restrictions, in the same proportion it withdraws itself from the benefits and privileges of International Law. . If it ceases to sanction, or formally withdraws, privi- leges which have been granted to other states, or to aliens resident within its territory, or which they have enjoyed with its tacit consent, it is guilty of a viola- tion of comity which will gain for it the ill-will of na- tions, and, if such a policy be persisted in, may in the end result in measures of retaliation. In respect to the duty of commercial intercourse, it has been contended by some writers that the right to such intercourse is a perfect right, and that a refusal to enter into commercial relations is a just cause for war. Others claim that such intercourse is a perfect 96 OUTLINES OF INTERNATIONAL LAW. right only when an article of commerce is produced by one state which is absolutely necessary to the existence of another. Neither of these views is fairly deducible from the fundamental principles of International Law. In the first place, while many articles of trade are high- ly desirable, none have thus far been shown to be so absolutely necessary and indispensable as to justify a resort to forcible methods to obtain them. Such a view is not to be inferred from the theory of state sovereignty and independence, and a refusal to enter into such relations would certainly not justify acts of hostile interference. " Vattel lays down the general rule that every nation, in virtue of its natural liberty, has a right to trade with those which shall be willing to correspond with such intentions, and to molest it in the exercise of its right is an injury." l " The obliga- tion of trading with a foreign state is imperfect in it- self, and gives them only an imperfect right, so that, in cases where the commerce would be detrimental, it is entirely void." a " China and Japan for a long time declined all commercial intercourse with other nations, and even now permit only a very restricted trade, in particular articles and at particular places. The ques- tion was at one time discussed whether these people could not be compelled to open their ports to foreign- ers, and engage in trade and general intercourse with the rest of the world. But, as a question of in- ternational jurisprudence, it scarcely merits considera- tion. No doubt on this point could arise in the mind of any person except those who contend that the rules 1 Halleck, vol. i., p. 402. a Ibid., p. 404 ; Vattel, "Droit de Gens," liv. ii., chap, ii., 24-48 PERFECT AND IMPERFECT RIGHTS. 97 of International Law adopted by Christian nations are wholly inapplicable to the countries of Asia. But this opinion, although at one time supported by writers of unquestionable ability, is now almost universally re- jected by publicists." ' References. For a discussion of the fundamental, or perfect, rights of states, the student is referred to the following authori- ties : Hall, " International Law," pp. 37-50 ; Creasy, " First Plat- form of International Law," chap. viii. ; G. F. De Martens, " Precis du Droit des Gens," liv. iii., chaps. 1-3; liv. iv., chaps. 1-4; Hal- leek, vol. i., chaps, iv.-vii., and chap. xiii. ; Vattel, chap, iii., 35- 48 ; "Woolsey, 36-52. For the rules and forms of international ceremonial, diplomatic, naval, and military, see Halleck, chap, v., 15-29; Ortolan, ''Diplomatic de la Mer;" G. F. De Martens, liv. v., 175-184; Heifter, liv. iii., chaps. 1 and 2; Vattel, chap, iii., and the naval and military regulations of various states. The subject of" Imperfect Rights " is treated by Creasy, pp. 15-23 ; Phil- limore, vol. i., pp. 181-183; Halleck, vol. i., chap, xiii., 1-25,- G. F. De Martens, liv. v., 164-184; Vattel, bk. ii., chaps, i. and ii. Under the head of duties, or moral claims, this subject is quite fully treated by Dr. Woolsey. " International Law," 22-25. 1 Halleck, vol. i., p. 405. CHAPTER IY. NATIONAL CHARACTER. 1. National Character of an Individual, how De- termined? The national character of an individual is determined by his citizenship. 2. Definition of the Term Citizen. A citizen or sub- ject of a state is an individual member of the body politic, owing it allegiance and entitled to its protec- tion in person and property. The terms citizen and subject, as used in International Law, have precisely the same meaning. They apply to all the inhabitants of a state, of both sexes, and of all ages and conditions. The term citizen is usually applied in states having republican forms of government ; the term subject in those having monarchical institutions. Jt is not an essential condition of citizenship that an individual subject or citizen should have any share in the govern- ment of a state. His position at International Law is the same in either case. The right of suffrage is strict- ly municipal in character, and is a privilege granted, or withheld, by a state in accordance with its constitution and laws. In some states it does not exist, in others it is greatly restricted, in none does it extend to all who have the rights and privileges of citizenship. 1 1 In the United States it is possible, however, for an alien to ac- quire the right to vote, in many states, without becoming a citizen of the United States. But such persons would not be citizens of NATIONAL CHARACTER. 99 3. Classification of Citizens. Citizens or subjects may be either native lorn or nattiralized. The first is a natural, the second an artificial, state of allegiance. A native-born citizen is one born within the territory of a state, and subject to its jurisdiction. This condi- tion of allegiance is called the citizenship of birth, or nativity. It adheres through life, unless terminated by expatriation, or by process of law. TVhen the na- tionality of an individual is drawn in question, his citi- zenship by birth is always presumed, and it is incum- bent upon him to prove any subsequent change of allegiance. If, however, he has acquired another na- tional character, by undergoing the process of natural- ization elsewhere, with the consent of his native state as expressed in its laws and treaties, he is as fully a citizen of the latter state as if he were there native born, and is as fully entitled to its protection. 1 the United States, and would not be entitled to its protection abroad. Tbey are not citizens according to the rule of International Law. 1 The term native-born citizen is extremely difficult of definition, for the reason that it is impossible to deduce a uniform rule upon the subject which is observed by all nations. Most modern states, however, follow one of two rules, and determine the nationality of a child, 1. By the nationality of its parents; 2. By the place of its birth. Until the close of the last century the former rule prevailed among most civilized states. Since the beginning of the present century, and by reason of the greater and more frequent movement of individuals from one state to another, and especially to newly- settled countries, the second rule has acquired great prevalence. "England and the United States claim all persons born within their territory as native born citizens, whatever may have been the na- tionality of their parents. Denmark, Portugal, Holland, and Italy follow substantially the same rule, as, with some exceptions, do France, Belgium, Baden, Greece, and Spain. The other states of Europe regard a child as having the citizenship of its parents. The definition stated in the text applies more generally than any other. 100 OUTLINES OF INTERNATIONAL LAW. A naturalized citizen is one who has relinquished his citizenship of nativity, and has acquired a new al- legiance in a state other than that of his birth. The citizenship of a dependent person is that of his principal or superior. Hence the citizenship of a child is that of his father, if legitimate, of his mother, if ille- gitimate; of a ward that of his guardian; of a wife that of her husband. Hence children born on the high seas, or while passing through foreign countries, have the legal nationality of their parents. Citizen- ship in a state may be renounced by an individual with a view to undergoing the process of naturalization elsewhere. It may also be terminated by process of law, as by sentence of death or exile, which in most states has the effect of destroying civil rights. It may be forfeited by emigration, or by long-continued ab- sence. Once forfeited it may be resumed with the consent of the native state, by a compliance with the formalities of its municipal law. 4. Naturalization is that process of municipal law by which an individual effects a change in his national character. Most states that recognize the sanctions of Inter- national .Law claim and exercise the right of admit- ting foreigners to their allegiance, and of bestowing upon them the privileges and responsibilities of citizen- ship. Nearly all of them recognize the right, on the part of their subjects, of renouncing their native alle- giance and of acquiring a new citizenship in a foreign state. The process of naturalization consists of two essential parts : 1st. A renunciation of the old allegi- ance. In some states this is expressly required, in others it is presumed by the act of naturalization. NATIONAL CHARACTER. 101 From the nature of allegiance it is obvious that an individual can maintain the relation to but one state at a time. 2d. A formal assumption of the duties and obligations of citizenship in the new state. This is usually effected by an oath of allegiance. A period of residence is also required as a condition precedent to naturalization. Conditions of Naturalization. The following con- ditions of naturalization are now generally sanctioned by the usage of nations. (a.) The result of the process of naturalization is to effect an entire change in the national character of an individual. He is as fully invested with the rights of citizenship in the new state as if he were there a native- born citizen, and is entitled to the same extra-territorial protection. Such protection can be extended to him in the state of his nativity only as the result of treaty stipulation. (5.) A state, by exercising its right of naturalization in favor of an individual, cannot absolve him from any legal obligations due to his former sovereignty at the time of his emigration ; and he is liable to be held to the performance of such obligations should he return at any time to the jurisdiction of his native state. (> "Report of (English) Naturalization Com- mission, 1869," pp. 114, 124, 129, 138. Ibid., p. 116; Italian Civil Code," art. iii. ; " Civil Code of Greece," art. v. > "Report of (Eng- lish) Naturalization Commission, 1869," p. 131. 112 OUTLINES OF INTERNATIONAL LAW. transferring personal property, the practice of nations has been much more liberal. This difference of view in regard to the two kinds of property was due in part to the fact that, in early times, only land and immov- ables were recognized as having the quality of prop- erty, and in part to the fact that personal property, especially in the form of money and valuables, could be easily concealed and withdrawn from the operation of the law. The result was that personal property began to be made the subject of legal regulation at a much later date, and when more enlightened views had begun to prevail upon the subject of ownership and property regulation. 1 The term alien i& applied to any person within the territory of a state, at any time, who is not a citizen or subject of that state, either by birth or naturaliza- tion. These foreigners or strangers are susceptible of classification into, (.) Aliens, or Aliens Proper, including all those per- sons who are sojourning temporarily within a state, or who are passing through its territory. (b.) Domiciled Strangers, including all those persons who have acquired a legal domicile at some place with- in its territorial jurisdiction. From the principle that all persons within the terri- " Feudal principles were maintained so long in England that, until the year 1870, an alien was incapable of holding land for more than twenty-one years; that is, he could not purchase a freehold. This, however, was remedied by the Naturalization Act of 1870, a which relieved aliens of most of their disabilities, and, as regards land, placed them on the same footing as subjects." Boyd's Wheaton, p. 113. 1 Amos, " Science of Law," p. 164. 33 and 34 Victoria, chap, xiv., 2. NATIONAL CHARACTER. H3 tory of a state, at any time, are subject to, and are protected by, its municipal laws, it follows that aliens, so long as they obey those laws, will be as fully pro- tected by them as are the citizens of the state in which they are resident. They are subject to some restrictions, however, from which citizens are exempt ; and, on the other hand, are not held to the performance of certain duties to which citizens are liable from the fact of their allegiance. The most important of these is an exemption from personal imposts 1 and from obligatory military service a duty, from its nature, incumbent upon citi- zens alone. " During the American civil war the pro- tection of England was frequently demanded by Brit- ish subjects against conscription in the United States army. Lord Lyons was instructed that there is no rule or principle of International Law which prohibits the government of any country from requiring aliens resident within its territories to serve in the militia or police of the country, or to contribute to the support of such establishments. 2 But Her Majesty's govern- ment would not consent to British subjects being com- pelled to serve in the armies of either party where, be- sides the ordinary incidents of battle, they would be exposed to be treated as rebels or traitors in a quarrel in \vhich, as aliens, they had no concern, and on their re- turn to England would incur the penalties imposed on British subjects for having taken part in the war. 3 1 The term impost, as here used, refers to impositions of personal service, as for jury duty, etc., and to impositions of money in the way of poll-taxes, or other levies upon citizens alone. 4 Despatch to Lord Lyons, No. 76, April 4, 1861. 3 Ibid., No. 349, Oct. 7, 1861; "Parliamentary Papers, North America," 1864, No. 13, p. 34. OUTLINES OF INTERNATIONAL LAW. All who could prove their British nationality were, accordingly, exempted from military service. 1 But if a British subject had become naturalized in America, England refused to protect him so long as he remained there. 2 Individuals who had declared their intention of becoming naturalized, but had not completed the necessary formalities, were also treated as aliens, and exempted ; 3 but Her Majesty's government declined to interfere in their behalf if they had voted at elections, or in any way exercised any of the exclusive privileges of a citizen. 4 In 1863 an Act of Congress was passed specially including 'intended' citizens in a further enrollment of the militia ; B and a proclamation of the President allowed sixty-five days to such persons to leave the country, or become liable to be enrolled by remaining. To this Great Britain acquiesced, the pe- riod allowed for departure being deemed sufficient. 8 It was regarded as an established principle that a gov- ernment might, by an ex post facto law, include in its conscription any persons permanently resident in its territory, provided it allowed them reasonable time and facilities for departure on the promulgation of such a law." 7 s In states where a military establishment is main- tained by a system of voluntary enlistments, few re- 1 Despatch to Lord Lyons, No. 379, July 29, 1861. 8 Ibid., No. 259, June 7, 1862. 3 Mr. Seward to Mr. Stuart, Aug. 20, 1862. 4 Consular Circular from Mr. Stuart, No. 99, July 25, 1862. 5 "United States Statutes at Large," vol. xii., p. 731. 6 Despatch to Lord Lyons, No. 485, Aug. 31, 1863. 7 "Parliamentary Papers, North America," 1863, No. 13, p. 34; Despatch to Lord Lyons, No. 293, Nov. 27, 1862. 8 Boyd's Wheaton, pp. 209, 210. NATIONAL CHARACTER. strictions are placed upon the admission of aliens to the military or naval service. By such an act, how- ever, and during the period of such service, an alien forfeits the protection of his own government, and must look for protection to the state under whose flag he serves. In nearly all states aliens are debarred from holding public office of a political character, and are denied the right of suffrage, when that right exists. Some states still place them under special disabilities in the matter of holding land, or engaging in business, or following certain trades or professions ; others make this conditional upon reciprocity. 1 In nearly all the Continental states of Europe aliens are placed at some disadvantage as regards subjects in instituting or main- taining suits at law, and in testifying in certain cases. They also require a register of aliens to be kept, and, in many instances, claim and exercise the right of ex- pelling them from their territories for cause. Many of these restrictions are reasonable, and, if they are generally known, furnish no ground of complaint to other states whose citizens are subjected to them. In some cases, notably in certain Mohammedan and pa- gan countries, whose systems of government and law are radically different from those of Christendom, the separate treatment of aliens has been made the sub- ject of treaty stipulation. 1 In the courts of the United States alien friends are entitled to the same protection in their rights as citizens. Nor are their suits barred by proof that the remedy is not reciprocal. Tayler vs. Car- penter, Story, vol. iii., p. 458. Aliens in the United States are not liable to militia duty. For treatment of alien enemies by the Unit- ed States, see 4067-4070 of the "Revised Statutes of the United States." OUTLINES OF INTERNATIONAL LAW. Interference T)y a Government in Behalf of its Citi- zens Abroad. If the government of a state has reason to believe that its citizens are being subjected to restric- tions which are unjust, excessive, or unreasonable, it is usual to represent the case to the offending govern- ment in the diplomatic way, and to request their mod- ification or removal. Should these means fail to secure the desired result, and should the restrictions be of such character as to amount to a denial of justice, a state would be justified in resorting to retaliatory measures, and could impose similar or equivalent restrictions upon the subjects of the offending state who might be found within its jurisdiction. 7. Domicile. Of all the persons residing in a state at any given time two classes have elsewhere been de- scribed aliens and citizens. Between these extremes is found a large class of persons who are not tempora- ry sojourners, neither have they the quality of citizen- ship. Their residence is not transient, as is that of aliens proper, and they are not members of the body politic, owing it the allegiance of defence, and enjoy- ing the rights and political privileges of citizens. These persons are called domiciled strangers. While their residence is to some extent permanent, they are unwill- ing, for reasons of their own, to give up their citizen- ship of nativity ; and it is not inconsistent with their peculiar relation that they should cherish a remote in- tention of returning to their native countries should it ever become desirable to do so. Definition of Domicile. Domicile may, therefore, be defined as the place which an individual has freely chosen as the centre of his domestic and jural relations, and a domiciled stranger is an alien who, for purposes NATIONAL CHARACTER. of residence or business, has selected a certain place as his durable abode, with no present intention of re- moving therefrom. There has been some confusion expressed in the works of writers upon the subject as to the precise meaning of the terms citizenship and domicile. From the definition given it will be seen that they are not synonymous ; indeed, in strictness, they have no pos- sible connection with each other. The citizen is a creat- ure of the municipal law of a state, with which other states ordinarily have no concern. The rules of domi- cile determine the status of an individual from the stand- point of International Law, and have no necessary con- nection with citizenship. Domicile is a fact, and, when the domicile of an individual is drawn in question, is proved, like other facts, by evidence as to residence or intention. Citizenship results from birth, or the oper- ation of law, and is acquired by undergoing a legal process, the various steps of which are regulated by the municipal law of a state. It is, moreover, a matter of le- gal record, and, when the citizenship of an individual is questioned, it is established by the production of a duly authenticated certificate of origin, or naturalization. In one state citizenship may be acquired with but little effort ; in another with extreme difficulty, or not at all. This is a matter of strictly municipal concern, which every state regulates for itself as an incident of its sovereignty. A state may make such rules on the subjects of naturalization and expatriation as it deems just, or suited to its policy, the only limitation being that such laws must not project themselves into the jurisdiction of another state, and give rise there to a conflict of allegiance. OUTLINES OF INTERNATIONAL LAW. The rules of domicile, in so far as they are recog- nized and sanctioned by International Law, must, like all its rules, be based upon the general consent of na- tions. A state may, by its municipal laws, grant cer- tain privileges to domiciled strangers, but those privi- leges are local in character, not international, and can have no effect beyond the territorial jurisdiction of the state granting them. In a similar way several states may arrange, by treaty, to secure for their subjects special privileges as to domicile in each other's territories, or may obtain for them special exemptions from the op- eration of certain municipal laws. These privileges and exemptions, however, are restricted in their oper- ation to the territorial limits of the states that partici- pate in the treaty. An individual may also have a domicile in several places at the same time ; indeed, a strict application of the international rules of domicile may cause the prize courts of a state to regard a fel- low-citizen as an alien enemy. The opposite rule pre- vails as to citizenship, and an individual, in his charac- ter as a citizen or subject, can owe allegiance to but one state at the same time. Conditions of Domicile. (a.) To constitute domicile there must be actual residence, with the intention of re- maining. This intention is inferred from the acts of an individual. If he hires or purchases a place of res- idence, enters into business relations, makes contracts which will require considerable time for their execu- tion, or does any acts of a similar character which are susceptible of being proved by evidence, a court will deduce from such acts that intention of remaining which constitutes domicile. (5.) Domicile must be freely chosen. Constrained NATIONAL CHARACTER. residence does not give domicile. By constrained res- idence is meant any residence not the result of free choice on the part of an individual otherwise capable of free action. The residence of an officer in the mili- tary or naval service is of this character, as is that of ambassadors, their secretaries, and the attaches of a le- gation. The domicile of these persons is the same as their citizenship, native or acquired. They undergo no change of domicile, no matter how long they may be absent from home or resident abroad, provided such residence has an official character, and is in obe- dience to military orders, or is in the exercise of diplo- matic functions. The domicile of a person undergoing a sentence of imprisonment, exile, or banishment, is not changed by such constrained absence, unless the exile or banishment be in the execution of a life-sen- tence. As consuls do not enjoy the privileges of ex- territoriality, they become domiciled, for most pur- poses, at the place where they reside in a consular ca- pacity. It is difficult, however, to state a rule of dom- icile which will be of general application as regards this class of public officers. They are subject to the law of the place where they reside, and the legality of ~their private acts is determined by the local law. If, in addition, they are subjects of the state in which they are resident consuls, they differ in no respect, as to citizenship or domicile, from other citizens. If, on the contrary, they are citizens of the state which they represent, in the consular capacity, their residence is constrained, and their domicile is unchanged. 1 1 Halleck, vol. i., p. 368; Phillimore, vol. ii., pp. 310, 811; Case of The Indian Chief, Robinson, "Admiralty Reports," vol. iii., p. 26; The Josephine, Robinson, vol. iv., p. 26; The President, Rob- inson, vol. v., p. 277; The Falcon, Robinson, vol. vi., p. 197. 120 OUTLINES OF INTERNATIONAL LAW. (r,each of parole is an offence against the laws of war. Its enormity consists in the breach of good faith that is involved in the commission of the offence. The punishment inflicted is in proportion to the importance of the parole given. The extreme penalty is death, which may be inflicted upon a paroled prisoner who is captured in arms before he has been regularly ex- changed. 32. Intercourse between Belligerents. Although the rule of non-intercourse between belligerent states pre- vails with great strictness during the existence of war between them, it would be impossible even for hostil- ities to be carried on, if all intercourse, irrespective of its character and purpose, were to be absolutely pro- hibited. International Law recognizes this necessity, and deduces , from ; the usages of nations in war the rules governing such intercourse, the conditions upon which it is based, and the formalities with which it shall begin and end. Such intercourse, to be lawful, must have some direct connection with the existing state of war, or must be carried on with a view to the re-establishment of friendly relations. 238 OUTLINES OF INTEKNATIONAL LAW. Flags of Truce. Communication between belliger* ents in the field is established by means of flags of truce. They are sent toward the enemy's lines habit- ually during an interval of active operations. In case of extreme urgency they may be sent during an en- gagement. Though each party has a right to send them, there is no corresponding obligation on the part of the enemy to receive them, though it is usual to do so save in very exceptional cases. After due notifica- tion has been given they may be warned away ; and, after a reasonable time has been given to allow them, to withdraw, they may be fired upon. An officer com- ing under a flag of truce has no right to enter the ene- my's lines, nor can he demand that he be conducted into the presence of the commanding general. As a matter of strict right he cannot expect to pass the outposts of the hostile army. His message, if writ- ten, may there be transferred to the officer receiving him, or, if verbal, the belligerent may demand that it be reduced to writing, or that it be delivered orally to such person as the commanding general may desig- nate to receive it. If permitted to pass the outposts he may be blindfolded, or resort may be had to such other means as will prevent him from obtaining infor- mation. While the officer accompanying a flag may see whatever the enemy permits him to see, while in that enemy's lines under a flag of truce, and the bearer of a lonafide message, the rules of war justly forbid the sending of flags of truce with a view of obtain- ing information, either directly or indirectly. The present rule of war regards the use of flags for the purpose of obtaining information as illegal and dishon- orable, subjecting the bearer to punishment as a spy. WAR. 239 33. Cartels and Capitulations. A cartel is an agree- ment entered into between the commanding generals of opposing armies, or fleets, for the purpose of effect- ing an exchange of prisoners. Capitulations are com- pacts entered into, between the same parties, to regu- late the details of surrender of a fortified place, a vessel of war, or a defeated army in the field. They are drawn up in the same manner as treaties, though not with the same formalities, and are interpreted in accordance with the same rules. The general com- manding an army in the field is presumed to have authority to make them, and to give effect to their provisions. If he lacks such authority, or if his powers in this respect be limited, it is his duty to so notify his enemy. 34. Safe-conducts and Safeguards.-^- A safe-conduct is a pass given to an enemy subject by the general commanding an army in the field. It authorizes the bearer to pass from one specified point to another, by a specified route, and within certain stated limits of time. If the authority granted be exceeded, the holder is liable to be regarded as a prisoner of war. If undue advantage be taken of a safe-conduct, to obtain infor- mation, the offender violates the laws of war, and may be punished accordingly. A safeguard is a written protection to persons, or property, or both, such per- sons being resident, or property situate, within the lines of the general issuing it. It is given upon the authority, and by, or in the name of, the general-in- chief, and is binding upon all persons under his com- mand. " Sometimes they are delivered to the parties whose persons or property are to be protected; at others they are posted upon the property itself, as 24:0 OUTLINES OF INTEENATIONAL LAW. upon a church, museum, library, public office, or pri vate dwelling. They are particularly useful in the as- sault of a place, or after its capture, or after the ter- mination of a battle, to protect the persons or prop- erty of friends from destruction by an excited sol- diery." l Violations of either safe-conducts or safeguards are punished with the greatest severity. It is seen that safe - conducts and safeguards are binding upon the troops commanded by the general who issues or signs them. Whoever violates them, therefore, not only violates the laws of war, but is also guilty of the most serious of all military offences dis- obedience of orders. For this reason escorts are usu- ally furnished to enforce respect to these instruments, and severe penalties are imposed upon those who vio- late them. " Such escorts or guards are justified in resorting to the severest measures to punish any vio- lation of their trust." a 35. Licenses to Trade. Licenses to trade are writ- ten instruments authorizing their holders to engage in certain trade with the enemy. The rules in accordance with which the trade is to be conducted, the articles to be bought, sold, or exchanged, the amount of trade authorized, the vehicles, whether ships or wagons, etc., in which it is to be carried on, are all specifically laid down in the permit. A breach of any of its conditions involves the forfeiture of the goods, conveyances, and other implements engaged, as it constitutes an offence similar to breach of blockade. Licenses are issued by a belligerent government, or 1 Halleck, vol. ii., pp. 353, 354 Ibid. WAR. 241 by a general in the field, with the sanction of his gov- ernment. Trade carried on under them becomes legal, and is so regarded by courts of the state by whom the license is granted. 36. Crimes and Offences against the Laws of War. Certain acts done during a state of war are regarded by all nations as violations of the laws of war. They are crimes at International Law, and may be punished by the belligerent who suffers by their commission. Such an infliction of punishment by one belligerent furnishes the other with no ground of retaliation or complaint. All crimes against the laws of war lose their criminal character at the close of the war, and are then no longer punishable. They are crimes ac- cording to a code of law which ceases to exist when peace is declared; therefore all prisoners held by a belligerent, for violation of the laws of war, are en- titled to be set at liberty at the date when the treaty of peace goes into effect. Spies. A spy is a person who enters the lines of an army in disguise, or under false pretences, for the pur- pose of securing information. An individual who, in the proper uniform of his army, penetrates within an enemy's Iine3, is not a spy, for it is the duty of the enemy to maintain his line of outposts at such strength and efficiency, in point of numbers, as will make it im- possible for individuals to pass them. Concealment or disguise, and the employment of false pretences, are essential elements to the crime, of being a spy. Those who undertake to gain information of the enemy's movements by means of balloons cannot be regarded as spies, for none of the essential conditions of the offence attend such operations. Spies are employed 16 242 OUTLINES OF INTERNATIONAL LAW. at rates of pay commensurate to the risks they under- take, and are presumed to be aware of the penalty incurred in the event of their being captured by the enemy. Service as a spy is voluntary, and cannot be compelled. A state cannot require an individual in its military service to act as a spy. If it permits or authorizes a person in its military or naval service to act in that capacity, the fact of his being in such ser- vice will not screen him from punishment, should he be apprehended by the enemy ; nor will retaliation be justifiable on the part of the belhgerent who so em- ploys persons in his military service. For being a spy the punishment is death. An indi- vidual charged with the crime cannot demand a trial ; it is granted, if at all, by the municipal law of the captor's state. Guerillas. These are persons who lurk in the vicin- ity of an army, and commit acts of hostility without the authorization of their government, or who carry on their operations in violation of the laws of war. Small bands or organized parties, commissioned by their government and forming a part of its regular forces, are called partisans. Their operations, however an- noying to an enemy, are perfectly lawful so long as they are carried on in accordance with the laws of war. The evil must be remedied by opposing such partisan forces by other forces of a similar character. Guerillas, however, are not partisans, "their acts are unlawful, and when captured they are not treated as prisoners of war, but as criminals, subject to the pun- ishment due to their crimes. . . . The perpetrators of such acts, under such circumstances, are not enemies, legitimately in arms, who can plead the laws of war WAR. 243 in their justification, they are robbers and murderers, and, as such, may be punished." ' Pillaging consists in the forcible taking of property in an enemy's country, without authority, and in diso- bedience of orders. It has been seen that the laws of war prescribe a method in strict accordance with which certain kinds of property may be taken in war. If it be taken in any other way such taking constitutes pil- lage, and is punishable accordingly. There can be no higher test of discipline in a command than is shown by the manner in which the private property of an enemy is treated within its sphere of operations. If such property is respected, if acts of pillage are strictly repressed and severely punished, the discipline is good. If property and life are unsafe in its vicinity, if irreg- ular seizures are permitted, if orchards and fields are devastated, discipline worthy of the name cannot be said to exist. The punishment of pillage varies with the nature of the offence. The extreme penalty is death. Crimes of Violence. Certain crimes of violence, such as murder, robbery, mayhem, rape, burglary, as- sault and battery, and assaults with intent to commit crime, when committed by, or against, residents or in- dividuals of the invading army, are punishable by mil- itary commissions, or other tribunals of like jurisdic- tion. The punishment inflicted is usually more severe than that awarded by the law of the place where the offence is committed. This course is made necessary 1 Halleck, vol. ii., p. 7. General Halleck includes guerillas and partisans under the same designation. In this matter it is rather the service in which these persons are engaged, than their name, by which their status is regulated. 244 OUTLINES OF INTERNATIONAL LAW. by the fact tlmt, in the immediate theatre of war, all civil authority is suspended, the local courts being prevented, by the fact of war, from exercising their ordinary functions. If such crimes were not punished by the belligerent they would go unpunished, a most undesirable event from every point of view. Crimes, at such a time, are of more frequent occurrence, and are usually of greater enormity, than during a state of peace. The ordinary restraints of law are removed or suspended, and the criminal class soon asserts itself as it finds that opportunity, temptation, and apparent immunity go hand in hand. Instances have occurred in which prisons and jails have been emptied upon the approach of an invading army. The very presence of a hostile force upon the soil of a country seems to breed a special criminal class. This class is recruited by de- serters from both armies, who, operating singly or in small bands, commit depredations of all kinds, accom- panying their criminal acts with the most barbarous atrocities. It is to the suppression of this kind of brigandage that every belligerent finds himself obliged to devote considerable time and attention, and, not infrequently, a large amount of military force. No repressive measures are too severe which effect any reduction in this kind of crime. The criminals them- selves are outlaws, beyond the protection of all law, civil or martial, and may be hunted down like wild beasts. 37. Temporary Occupation. When an invading force has taken secure possession of a portion of the enemy's territory, such territory is said to be occupied, and the invader may exercise there all the rights of occupation. The former sovereignty has been dis- WAR. 245 placed by force. The allegiance of the inhabitants to their former sovereign, although suspended by war, has not been destroyed. Their allegiance to the in- vader is constrained and involuntary, and can be re- tained by him only so long as the occupying force is maintained at such strength as to compel obedience. History of the Different Views of Occupation. The theory of the Roman Law, upon the subject of occupa- tion, was that territory, or other property, lost by a state as a result of war, became the property of him who was sufficiently powerful to occupy and retain it ; and that, during such transient occupancy, all the rights and powers of sovereignty were vested in the invader. The allegiance of the inhabitants to their former sovereign was legally dissolved, and was, by the fact of hostile occupation, transferred to the new sovereign. This view was maintained, in practice, until after the middle of the eighteenth century. Toward the close of the last century, and as a conse- quence of the frequent cases of occupation during the wars that followed the French Revolution, a different view began to prevail. The doctrine of a complete transfer of allegiance and sovereignty was generally abandoned, and was replaced by a theory of tempora- ry substitution of sovereignty, involving a temporary transfer of allegiance on the part of the inhabitants of the occupied territory. This view may be stated as follows : " The power to protect is the foundation of the duty of allegiance ; when, therefore, a state ceases to be able to protect a portion of its subjects, it loses its claim upon their allegiance, and they either directly pass under a temporary or qualified allegiance to the conqueror, or, as it is also put, being able, in their 24:6 OUTLINES OF INTERNATIONAL LAW. state of freedom, to enter into a compact with the in- vader, they tacitly agree to acknowledge his sovereign- ty in consideration of the relinquishment by him of the extreme rights of war which he holds over their lives and property." 1 Present View of Occupation. The present view of occupation is that no permanent change ensues in the national character, or allegiance, of the population of an occupied territory as a result of the mere fact of occu- pation. The invader maintains himself in such territory by force. The relation existing, between the command- ing general of the occupying force and the population, is not that of allegiance, but of constrained obedience ; and it exists only so long as he is able to compel such obedience by force. The authority exercised by an invader is something entirely different from that exer- cised by the legitimate government, and rests upon an entirely different basis. In most respects it is greater and more extensive than the latter, and has no founda- tion in the consent of the governed. The legitimate government of the occupied territory is temporarily displaced and overthrown ; the functions of its officers and agents are suspended, and the territory is ruled by martial law. If the ordinary laws of the country, or any of them, are permitted to exist, and if the courts are permitted to administer them, they do so at the pleasure of the commanding general. No guarantees, constitutional or otherwise, are effective against his will, and his consent to their existence, or execution, may be withdrawn at any time. The occupation is 1 Hall, pp. 397, 398, citing Kluber, 256; Halleck, vol. ii., chap, xxxiii., 14; De Martens, 280. WAR. military, not civil, and the invader, in carrying on his government, is controlled by various considerations, among which, from, the necessities of the case, those of a military character are likely to prevail. Rights of Occupation. The movable property of the displaced government vests in the belligerent in- vader by right of capture. He may make such use of the state property and lands as he sees fit, and the in- come from such property is payable to him during the period of his occupation. Taxes due, and payable, are collected by his authority, and are appropriated to his use. If he increases them, or imposes any other burdens or exactions upon persons or property, he does so in virtue of his right to levy contributions and requisitions. The purpose of war is to obtain redress for an in- ternational wrong. To accomplish this purpose the use of force which is excessive, or which does not directly contribute to the end in view, is not lawful. An invader, therefore, is not justified, during his tem- porary occupancy, in making political or constitutional changes in the government of the occupied territory. The courts of the country should be kept open, the subordinate officers of the administration should be continued in their functions ; supported and sustained, if need be, by the military force of the invader. The responsibility of maintaining public order, and of pun- ishing crime, falls directly upon the commanding gen- eral of the occupying force. In the performance of this duty he may make use of the local criminal courts, wholly or in part ; or he may resort to martial law. Martial Law. Martial law, or, to speak more cor- rectly, martial rule, or the state of siege, is a term 248 OUTLINES OF INTERNATIONAL LAW. applied to the government of an occupied territory by the commanding general of the invading force. Martial law also prevails in the immediate theatre of operations of an army in the field. The reason in both cases is the same. The ordinary agencies of govern- ment, including the machinery provided for the pre- vention and punishment of crime, are suspended by the fact of war. This suspension takes place at a time when society is violently disturbed, when the usual re- straints of law are at a minimum of efficiency, and when the need of such restraints is the greatest possible. This state of affairs is the direct result of the invasion, or occupation, of the disturbed territory by an enemy. The only organized power capable of restoring and maintaining order is that of the invading force, which is vested in its commanding general. Upon him, therefore, International Law places the responsibility of preserving order, punishing crime, and protecting life and property within the limits of his command. His power in the premises is equal to his responsibil- ity. In cases of extreme urgency, such as arise after a great battle, or the capture of a besieged place or a defended town, he may suspend all law, and may pun- ish crimes summarily, or by tribunals of his own con- stitution. If his occupation be temporary, amounting to a mere passage through a portion of the enemy's territory, he may decline to interfere in local affairs, further than to make such transient dispositions as will protect non* combatants and their property along his line of march. If he occupies a district for a considerable period of time his responsibility becomes more general, and the performance of his duty more intricate and difficult. WAE. 249 To deduce a rule that shall control a general command- ing in an enemy's country, his position and duty must be clearly understood. He appears in the occupied territory as an agent of his government, charged with conduct of certain military operations. His first re- sponsibility is to his own government, for the success- ful conduct of the military operations with the direc- tion of which he is charged. In carrying on those op- erations his government and himself are bound by the laws of war. The usages of war authorize him to employ certain forcible measures toward his enemy. They forbid indiscriminate violence, the use of exces- sive force, or the use of any force which does not con- tribute directly to the end for which the war is under- taken. His exercise of authority in the occupied ter- ritory must, therefore, be the least possible, consistent with these ends. He may suspend the constitution and municipal laws, but he cannot change them, because such changes in no way contribute to the prosecution of the war. He can impose no unusual or unauthor- ized burdens upon persons and property, because the laws of war require him to protect them. If the territory is to be occupied for a considerable time, but without the intention, on the part of the in- vader, of permanently incorporating it in his own do- minions, it is usual to permit the local laws to prevail, and to sanction their enforcement by the existing courts and other legal agencies. Crimes of special atrocity, offences against the laws of war, and crimes over which neither the local nor military courts have jurisdiction, are tried and punished by military com- missions, or other special tribunals, constituted for the purpose by the commanding general. The existence 250 OUTLINES OF INTERNATIONAL LAW. of these tribunals is recognized by the laws of war as a necessity of martial rule. Difference of Opinion as to the Meaning of the Term Occupation. The precise meaning of the term occupa- tion has given rise to much difference of opinion. A definition was attempted at the Brussels Conference, in 1874. In accordance with this definition, " A ter- ritory is considered as occupied when it is actually placed under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised." 1 Opposing Views. Two views have been advanced as to what constitutes military occupation. One, main- tained by England and the smaller European states, regards a portion of territory as occupied only when it is held by a force sufficient to maintain, at all points, the authority of the invader, and to suppress uprisings against such authority. The Swiss delegate to the Brussels Conference properly compared this view of military occupation to a valid blockade ; both, to be binding, must be maintained in sufficient force to be effective. The other, and opposite view, is supported by some of the more powerful Continental states ; they regard occupation as complete when actual armed re- sistance has ceased, and the authority of the legitimate government has been displaced or overthrown. Obe- dience then becomes the duty of the population, inde- pendently of the force by which such authority is main- tained. Kisings against the authority of an invader are by them viewed as illegal- subjecting persons, dis- 1 "Article 1, Project of an International Declaration Concerning the Laws and Customs 'of War," Brussels, 1874. WAR. 251 tricts, and towns who favor them, or who take part in them, to severe punishments. The operation of this rule would work to the advan- tage of states which maintain large standing armies, and would greatly facilitate aggressive warfare. They would operate with greatest force against states which maintain small permanent establishments, whose poli- cy is rather defensive than offensive, and who would be obliged to rely, in time of war, upon the united re- sistance of their entire combatant population. Of the two views which have been described, there can be no question that the former is more nearly in accordance with the present rule of International Law. Occupation is an act of force, the martial rule of the invader is maintained by force, the obedience of the population is compelled by force, and obedience exists only so long as the constraint continues. The right of revolution is now recognized to exist, even against the regular government of a state, which rests upon the presumed consent of the governed. Still more does the right of armed resistance exist against an au- thority, which not only has no basis in the consent of the governed, but which is enforced and maintained, against such consent, by superior military force. Permanent Occupation. The rules which have been discussed refer to cases of temporary occupation. "When a conquest is to be made permanent, as when a prov- ince is recovered by the state to which it originally belonged, a belligerent is justified in making such per- manent political changes as he may deem expedient or necessary. 38. Retaliation. The laws of war are equally ob- ligatory upon the belligerent states and their allies, 252 OUTLINES OF INTERNATIONAL LAW. and upon the generals who control and direct their military operations in the field. The duty of observ- ing these laws is reciprocal, and bears equally upon both belligerents. If either of them violates a rule of war, or fails to conduct his operations in strict accord- ance with them, he cannot complain of similar conduct on the part of his enemy. On the contrary, he must expect it. The power of compelling an enemy to ob- serve the rules of war, or to refrain from violating any particular one of them, is called the right of retaliation. A general who suifers a wrong at the hands of an ene- my, or who finds that his enemy has violated any of the accepted usages of war, addresses him a communi- cation setting forth the facts which constitute his ground of complaint. If no explanation or apology is attempted, or if the enemy assumes the responsibil- ity of the act, he is justified in resorting to measures of retaliation. In choosing a means of retaliation, re- venge cannot enter into the consideration or decision of the question. His sole purpose must be to constrain his adversary to discontinue the irregular acts com- plained of. Unless the enemy's act be in gross viola- tion of the dictates of humanity, he must retaliate by resorting to similar acts in his military operations. States which find themselves compelled to resort to retorsion, as a means of obtaining justice, are permitted to make use of equivalent wrongs. Generals who are obliged to have recourse to retaliatory measures, how- ever, must confine themselves to the same or simi- lar acts. This because of the difficulty of balancing wrongs, and because the enemy, not appreciating the justice of the remedy adopted, may feel himself justi- fied in still further departing from the accepted usages, WAR. 253 and may ultimately decline to be bound by any of the rules of civilized warfare. THE TERMINATION OF WAE. 39. Truce and Peace. A truce, or suspension of arms., is a discontinuance of hostile operations over the whole, or a part, of the theatre of military operations. They are classified according to their purpose and duration, and according to the authority of the officers who may make them, into special and general truces. A special truce may be entered into by officers, of any grade, who command armies or separate detachments. They are always of a temporary character, and are made for the purpose of arranging the details of surrender of a defeated army, or besieged place ; for burying the dead, or removing the wounded, after a battle or assault ; or for conveying a message to the enemy, and receiving Ms reply, in some matter of necessary intercourse. These truces may be verbal or written. In general the agreement consists in the letter of one general pro- posing a truce for a certain purpose, and in the reply of his adversary accepting the proposed arrangement. The duration of the truce, in point of time, is precisely stated in the agreement ; and the truce expires, without notice, at the hour fixed for its termination. Special truces are binding upon all persons under the command of the officers who make them. What may be Done during a Special Truce. Dur- ing a truce the contracting parties are bound to refrain from all acts of hostility, and to desist from all military operations of a hostile character, and from all prepara- tory movements, or manoeuvres, which could not have been performed during the continuance of hostilities, 254 OUTLINES OF INTERNATIONAL LAW. or which would have been performed under the fire of the enemy. This rule of conduct is deduced from the definition of a truce a suspension of hostilities. The end of a truce should find both belligerents in precisely the same situation in which they were when it began. "Whatever could have been done without regard to the enemy, during hostilities, may continue to be done during a truce. The movement of trains over a line of supply, the process of collecting forage and provisions, by requisition, in districts within the secure control of either party, may continue during a truce. It has also been contended that a closely in- vested place may stipulate for the privilege of receiv- ing an amount of supplies equivalent to that consumed during the truce. In strict justice, perhaps, this claim should be admitted. The fall of such a place, however, is usually only a question of time ; the besieger occu- pies a position of decided advantage, and the parties enter the truce upon very unequal terms. The besieger, therefore, may properly decline to yield the advantage which he has fairly earned, by permitting provisions to be introduced into the besieged place. To avoid difficulty and misunderstanding, it is always desirable to specify, in the agreement, what particular acts may or may nob be done during its continuance. A General Truce or Armistice is an entire suspen- sion of arms over the whole theatre of military opera- tions. They are made by the belligerent governments, or, with their authority, by the generals commanding in the field, and include within their scope all operations and forces of whatever character. They are usually entered into when the issue of the war has been settled decisively in favor of one of the belligerents, and with WAR. 255 a view to negotiations for peace. These agreements are made with greater formality than is the case with special truces, and describe, in considerable detail, what may and may not be done during the existence of the armistice. They are binding upon all forces, both mil- itary and naval, engaged in the war on either side. They go into effect from the date of signature, and be- come binding upon individuals from the date of notifi- cation. In naval operations some time is necessary for such notification to reach vessels of war on distant stations, and special arrangements are made in such cases to regulate the disposition of captures made be- tween the dates of negotiation and ratification. In the preparation of general truces, or armistices, the possible resumption of hostilities is provided for by a clause terminating the truce at a certain date, or upon the expiration of a certain notice. On the date thus agreed upon the truce ceases to have obligatory force, and hostilities are resumed by both belligerents. TREATIES OF PEACE. 40. Treaties of Peace resemble ordinary treaties in form, in the detailed method of preparation, and in bind- ing force. They differ from ordinary treaties, and from private contracts, in respect to the position of the con- tracting parties, who, from the necessities of the case, do not enter them upon equal terms. This in no re- spect detracts from their obligatory character, which cannot be too strongly insisted upon. "Agreements entered into by an individual while under duress are void, because it is for the welfare of society that they should be so. If they were binding, the timid would be constantly forced by threats or by violence into a 256 OUTLINES OF INTERNATIONAL LAW. surrender of their rights, and even into secrecy, as to the oppression under which they were suffering. The [knowledge] that such engagements are void makes the attempt to extort them one of the rarest of human crimes. On the other hand, the welfare of society re- quires that the engagements entered into by a nation under duress should be binding ; for, if they were not so, wars would terminate only by the utter subjugation and ruin of the weaker party." 1 "When either belligerent believes the object of the war to have been attained, or is convinced that it is impossible of attainment ; or when the military opera- tions of either power have been so successful as to de- termine the fortune of war decisively in its favor, a general truce is agreed upon, and negotiations are en- tered into with a view to the restoration of peace. There is no rule of positive obligation as to the man- ner in which such negotiations shall be established. The initiative may be taken by either belligerent, either directly with the hostile state, or indirectly through a neutral power. A neutral state may tender its good offices to either belligerent, at any time during the continuance of hostilities. The purpose of the pre- liminary negotiations is to arrange for a meeting of duly accredited representatives charged with the prep- aration of a treaty of peace. In choosing a place of meeting a point may be selected within the territory of either belligerent, or in that of a neutral state. If need be, a preliminary agreement is made, guarantee- 1 Senior, in vol. Ixxvii. of the Edinburgh He-view, p. 807; cited by Creasy, pp. 41, 42. See also Halleck, vol. i., pp. 260-266; Phillimore, vol. i., pp. 151-154; Bluntschli, p. 393; Heffter, 179. For an op- posite view, see Mommsen, "History of Rome," vol. i., p. 403. WAR. 257 ing the neutrality of the place of meeting, and the per- sonal immunity of the ambassadors. The representatives of the belligerent states meet at the time and place agreed upon, and, after an exchange of full powers, enter upon the task of preparing the treaty of peace. "When substantial agreement has been reached as to the general terms of peace, a preliminary draft or treaty is sometimes prepared, containing these provisions, and describing the questions that are to be deferred for final settlement in the permanent treaty. The preliminary treaty is signed and duly ratified by the contracting parties. If the war has been carried on by allies on either side, no one of them is justified, by any reason less strong than self-preservation, in making peace without the consent of the others, or in entering into a treaty prejudicial to the common inter- est of the allied powers. Treaties of Peace, when Binding. Treaties of peace become binding upon the signatory powers from the date of signature. They bind individuals from the date of notice. If the war has been carried on in distant dependencies, or on the sea, it is usual to stipulate in the treaty for the restoration of captures made be- tween the dates of signature and notification. Effects of Treaties of Peace. The cause for which the war was undertaken is presumed to have been set- tled by the resort to arms, and by the amnesty con- tained in the treaty. This is the case whether the state which was the aggressor in the war has been suc- cessful, or not, in its resort to force to obtain redress. The subjects of the belligerent states, who were placed in a condition of non-intercourse, and of legal hostility, as a result of the declaration of war, are restored to 17 258 OUTLINES OF INTERNATIONAL LAW. their normal relations. Obligations which were sus- pended, by the fact of war, resume their force with the establishment of peace. The payment of public and private debts, and of interest upon public stocks, is re- sumed. Treatment of Occupied Territory. Questions con- nected with territory, occupied by either belligerent at the close of the war, are finally settled by the terms of the treaty. In doing this some status is assumed, and this may be that existing before the w r ar, or at its close ; or an intermediate status may be chosen that existed at some instant during the continuance of hos- tilities. The details of evacuation of occupied territory, fortresses, and ports are arranged with great precision. If the treaty contains no stipulations as to occupied territory, the rule of uti possidetis prevails, and each belligerent retains the territory occupied by him at the close of the war. The rule as to the real property of the enemy is sub- stantially the same as that applied to territory. Im- movable property, belonging to either belligerent, shares the fate of the territory in which it is situated, unless otherwise stipulated in the treaty. Forts, arse- nals, dock-yards, and naval ports, the surrender or evac- uation of which is arranged for in the treaty, are trans- ferred in the condition in which they were at the date of the treaty. They cannot be dismantled, disarmed, or destroyed, but no obligation exists to repair them after that date, even when such repairs are necessary. Mov- able property of the enemy in the hands of a belliger- ent, at the date of the treaty, becomes his by the fact of possession. Contributions levied, but not collected, become void when the treaty goes into effect ; and no WAR. 259 new contributions or requisitions can be levied by either party, without the express authorization of the treaty. The right to levy them is an incident of bel- ligerency, and ceases at the termination of hostilities. If a portion of territory be ceded by either party, no guarantee of the allegiance of the population of the ceded district is given or expected. The fact that allegiance is based upon consent is now so generally recognized in such transfers, as to permit individuals to dispose of their property and to withdraw to their native state, when the territory within which they reside has been ceded to an enemy as a result of war or conquest. THE RULES OF MAKITIME CAPTURE. 41. The rules of war regarding the treatment of private property on land have been characterized by a marked and constant improvement since the beginning of modern history. To appreciate this change it is only necessary to compare the laws of war on land, as they are now understood, with the barbarous practices that prevailed during the Thirty Years' War, or even with the corresponding usages during the ISTapoleonic wars at the beginning of this century. The tendency has been to give to war on land the character of an armed contest between belligerent governments, restricting its operations and effects to the armed forces engaged on either side, and exempting private persons and private property from its hardships wherever such exemption has been possible. There has been no such general improvement in the laws having to do with the treat- ment of private property at sea, and the rules regulat- ing maritime capture have advanced but little since they were codified, more than eight hundred years. 260 OUTLINES OF INTERNATIONAL LAW. ago, in the Consolato del Mare. As different states have, at different times, obtained undue preponderance at sea, their invariable tendency has been to shape the rules of maritime capture, rather in accordance with their views of temporary policy and self-interest, than in accordance with the demands of humanity and civ- ilization. As a motive in making and authorizing such captures, the selfish desire for booty has been only too apparent ; easily predominating over all of the more or less plausible reasons that have been alleged in favor of the practice. From time to time proposals have been made to exempt from capture at sea all private property not contraband of war. These propositions have never been favorably received, however, and there is no present prospect of the general discontinuance of a practice, as unjust in principle as it is inefficient, as a means of redressing an international wrong. Forces that may be Employed in Maritime War. The force that may be employed in naval operations has already been described ; it may consist of the reg- ular naval establishment of the state, supplemented by such volunteer forces as may be deemed necessary. It may also consist of privateers. In time of war no small part of the duty of the naval force of a bellig- erent power consists in the exercise of the right of search, in the maintenance of blockades, and in effect- ing the capture of enemy's ships and goods upon the high seas. No such captures are legal, or can be made, except with the direct authorization of the captor's state. The making of captures without such author- ization constitutes the crime of piracy. Captures may be made upon the high seas, or within the territorial waters of either belligerent. Captures made in neutral WAR. 261 waters are illegal, and must be restored, with suitable apology and reparation, to the neutral government whose sovereignty has been invaded. Definition of Prise. The term prize is applied to all captures of property made at sea. The term ~booty is applied to similar captures of property on land. Title to Prize, in Whom Vested. The title to the prize first vests in the captor's government, and the further disposal of all such captures is regulated by its municipal law. The capture is made by its author- ity, and upon its responsibility. It may therefore make such disposition of its prize as it may deem best. It may convert it to its own use, or cause it to be de- stroyed, or sold ; and it may distribute the whole or a part of the proceeds of the sale among the captors, in accordance with the provisions of its municipal law. There has been some difference of opinion as to the precise instant when the title to a prize passes from the original owner and vests in the captor's govern- ment. Three rules have been applied : 1. The twenty- four-hour rule, based upon twenty-four hours of secure possession on the part of the captor. 2. The rule of pernoctation, according to which the prize must have been in possession of the captor during the period be- tween sun and sun. 3. The rule of cessation of resist- ance, by which the title is held to pass to the captor when armed resistance ceases, and the flag is struck, or a voluntary surrender is made. This rule is now the one most generally accepted. Duty of Captor. It is the first duty of a captor to convey his prize into a court of his own country for adjudication. In former times he was permitted to take his prize into a neutral port. This is still the rule 262 OUTLINES OF INTERNATIONAL LAW. of International Law; but the almost invariable prac- tice of neutrals in recent wars has been to forbid such a use of their ports, except in cases of distress or emer- gency. The crews of enemy merchant vessels captured on the high seas become prisoners of war, and are en- titled to the rights guaranteed to that class by the rules of war. The crews of captured neutral vessels cannot be regarded as prisoners of war. They are sim- ply detained subject to the action of the prize court upon the ship, on board of which they are employed. They are not enemies, and are not subject to detention or punishment. ]STo measures of severity toward them are justifiable except in cases of great emergency, and for such injuries, when shown to be unnecessary, prize courts may decree damages to the injured parties. Yessels captured on the high seas are sent into port under charge of a prize-master, who, with an adequate prize-crew, is placed on board for that purpose. It is the duty of the prize-master to secure the ship and goods in his charge from spoliation or damage during the homeward passage, and to deliver his prize, imme- diately upon her arrival, into the legal possession of the court having jurisdiction over the case. The ship's papers, log-book, register, sea-letters, and bills of lading are sealed by the commanding officer of the capturing vessel, and they, with two or more members of the ship's company, 1 are conveyed into port by the prize- master, and are delivered with the prize into the cus- tody of the court. The practice of furnishing prize crews tends to de- plete the fighting strength of the captor, and, if a 1 One of whom should be an officer when practicable. WAR. 263 number of captures are made, a time must come when a commander, having a due regard to the safety and efficiency of his own ship, can no longer make such detachments from his crew. This emergency is rec- ognized and provided for by the law of nations, and by the municipal law of most states, which authorize him in such an emergency to destroy his prize, or to accept a ransom. 1 As the present tendency of neutral states is to close their ports to maritime prizes, such disposition of prizes is more likely to increase than de- crease in frequency. The practice of destroying prizes has been objected to, but rather on the ground of hu- manity than legality. If the right to capture enemy property at sea be admitted, the right to destroy it follows as a natural consequence. The title of the original owner has been forcibly divested by an act of war. If any injury has been inflicted upon the bellig- erent, that injury consists in the fact of capture, which amounts to a destruction of the property, in so far as the owner and his government are concerned. It can matter little to either what disposition is made of the property, after the owner's title has been extin- guished. The Ransom of Captured Vessels. Ransom consists in an agreement entered into between a captor and the master of a captured vessel, acting in behalf of the owners, by which, in consideration of the latter bind- 1 Abdy's Kent, p. 276. " If the prize is a neutral ship, no circum- stances will justify her destruction before condemnation. The only proper reparation to the neutral, in such a case, is to pay him the full value of the property destroyed" (Twiss, "International Law During War," 167, p. 331; The Felicity, Dodson's "Admiralty Reports, "vol. ii., p. 386; Boyd's Wheaton, pp. 432, 433). 264 OUTLINES OF INTERNATIONAL LAW. ing himself to pay a stipulated sum, he is permitted to continue his voyage, by a specified route, to a certain port of destination. The instrument containing this agreement is called a Ransom Contract, and when reg- ularly made, its binding force is recognized by the law of nations. The Ransom Contract is executed in duplicate, one copy being retained by the captor, and the other by the master of the captured vessel, to whom it serves las a safe-conduct during the rest of his voyage. The precise route to be pursued is stated in the contract, and if he departs from it he is liable to a second capt- ure. In this case the ransom contract constitutes a prior lien upon the prize, and must be satisfied out of the proceeds of the sale, the remainder only being de- creed to the second captor. The copy of the ransom contract which is furnished the enemy master is, in effect, a guarantee against capture, by another cruiser of the captor's state, while in prosecution of the voy- age described in the agreement. He forfeits what- ever protection the contract gives him if he is found out of the course therein prescribed, unless driven from it by stress of weather or other evident necessi- ty. The contract usually specifies that, if the ship is wrecked on the high seas, or by the perils of the sea, the instrument is void. It is otherwise, however, in case the vessel be stranded, or wrecked intentionally by the master. " If the captor, after having ransomed an enemy's vessel, is himself taken by the enemy, to- gether with the ransom bill of which he is the bear- er, this ransom bill becomes a part of the capture made by the enemy; and the persons of the hostile nation who Avere debtors of the ransom, are there- WAR. 265 by discharged from their obligation under the ransom bill." 1 If the Kansom Contract has been conveyed to the captors state, or to a place of safety, prior to capture, it retains its obligatory character. Bansom Contracts constitute one of the exceptions to the rule of non-intercourse between enemies in war, and a suit to recover, on such a contract, should not be barred because the plaintiff is an alien enemy. The intercourse which is implied by the negotiation of such an instrument is a recognized necessity of war, and, for the purpose of enforcing his legal right, an alien enemy should be recognized as having a legal standing in the courts of the debtor's state. Indeed, such is the course pursued by most modern states. England, alone, constitutes an exception to the rule. " The English courts have decided that the subject of an enemy is not permitted to sue in the British courts of justice, in his own proper person, for the payment of a ransom, on the technical objection of the want of a persona stands in judicio, but that the payment could be forced by an action brought by the im- prisoned hostage in the courts of his own country for the recovery of his freedom. This technical objection is not based upon principle nor supported by reason, and the decision has not the sanction of general usage." * Hostages. It was the practice in former times to give hostages to the captor as additional security for the payment of ransom. They were conveyed to the captor's country, and were there detained as prisoners until the ransom was paid. They were not always 1 Halleck, vol. ii., p. 360. 2 Halleck, vol. ii., p. 361; Boyd's Wheaton, p. 476; case of the Hoop, Robinson's "Admiralty Reports," vol. i., pp. 169, 201. 266 OUTLINES OF INTERNATIONAL LAW. treated as prisoners of war, however, but were at times subjected to special hardships and restrictions, imposed upon them with a view of constraining the payment of the ransom contract. If they died in captivity the ransom contract still remained binding, as they were only regarded as collateral security for its payment. Recapture and Postliminy. When a prize has been made at sea, it has been seen to be the duty of the captor to send it to a port of his own country, or that of an ally, for adjudication. In the prosecution of this voyage it is liable to recapture, and a question arises as to its ownership in such a case. The prize has been recaptured by an armed vessel of the same nationality as the original owner ; but the recapture, in so far as the recaptor is concerned, was attended by the same risk and danger that would have been involved in an original capture of the same vessel from the enemy. The captor has acquired certain rights in the prize, and, at the same time, the title of the original owner to the property has been to a certain extent revested. The fiction of law which has been invented to adjust these conflicting claims is borrowed from the Roman Law, and is called the rule of postliminy. It was ap- plied by the Romans to all captures of persons or property made by an enemy in war, and a similar rule applied to such portions of the public territory as passed into the hands of an enemy as the result of conquest. The title to captured property vested in the captor so long as it remained in his secure posses- sion. As prisoners taken in war became the slaves of their captors, their status in Rome, as freemen, was suspended during captivity. If slaves were captured the rule of property applied. "When recaptured from WAR. 267 the enemy the title of the original owner was re- vived, and the property was restored to him on pay- ment of salvage. A person who was recaptured be- came, according to the rule of war, the property of his recaptor; but the law permitted him to resume his freedom, or citizenship, upon the payment of a specified sum. The modern rule of postliminy resembles in princi- ple the rule of the Eoman Law, although it is more just and humane in its application. Persons recapt- ured in war resume, at once, all their personal and property rights. Slavery and private ransom are alike discountenanced by International Law. Property re- captured from an enemy on land, if possible of identi- fication, reverts to its owner without cost or payment. Property recaptured from an enemy, at sea, is restored to its original owner ; but is charged with the payment of a reward to the recaptor, to reimburse him for the risk incurred and the service rendered. The reward paid to recaptors for the recovery of property captured at sea is called salvage. The amount of salvage to be paid, in any particular case of recapture, is determined by a prize court, in accordance with the municipal law of the recaptor's state. The amount of salvage award- ed varies with the difficulty of recapture, and the value of the prize. It depends also upon the character of the vessel by which the recapture is made, the award being greater in the case of a privateer or merchant vessel than in that of a vessel of war; none being awarded for the recapture of one public armed vessel by another. 1 "In general no salvage is due for the 1 For the law of the United States on this subject see 4652, " Re- 268 OUTLINES OF INTERNATIONAL LAW. recapture of neutral vessels and goods, upon the princi- ple that the liberation of a bona fide neutral, from the hands of the enemy to the captor, is no beneficial service to the neutral, inasmuch as the same enemy would be compelled, by the tribunals of his own coun- try, to make restitution of the property thus unjustly seized." 1 As recapture is possible only between the place of original capture and the port to which it is sent by the captor, the right of postliminy exists between the same limits of time and place. The title of the orig- inal owner is finally extinguished by the action of the prize court in decreeing the condemnation and sale of the captured property ; and the title acquired by the purchaser is good, even against the original owner or his government. If such property be recaptured after it has been regularly condemned and sold, it is not re- stored to the original owner, but is regarded as lawful prize, and is treated as such. England furnishes the only exception to this rule. According to the English law, property recaptured, during the continuance of a war, is restored to its owner upon payment of salvage, no matter how long it has been in the enemy's posses- sion, nor through how many hands it may have passed in the way of purchase and sale. A treaty of peace is alone held to confirm and perfect the title to capt- ures made during a war. 42. Prize Courts and their Jurisdiction. "Whenever a capture has been made at sea, it becomes the first vised Statutes of the United States." For that of France, England, Spain, Portugal, Denmark, Sweden, Holland, see Boyd's Wheaton, pp. 442-450; Hall, p. 424. 1 Boyd's Wheaton, p. 435. WAR. 269 duty of the captor to cause it to be conveyed to a port of his own country, or that of an ally, for adjudication. The municipal laws of all states provide special tribu- nals whose duty it is to determine questions of prize. These tribunals are called Prise Courts, and as the de- cision of such questions is an incident of admiralty jurisdiction, the admiralty courts of most states are given jurisdiction over cases of maritime capture. This power may be vested in these courts as a branch of their general admiralty jurisdiction, or jurisdiction may be conferred upon them, by special commission during a particular war. The former practice pre- vails iu. the United States, the latter now prevails in England. 1 Prize courts may sit in the ports or territory of a belligerent, or in those of an ally. The} 7 cannot sit in neutral ports, even with the consent of the neutral government, 3 and a belligerent would justly regard the granting of such permission as a violation of neutral obligation. This arises from the peculiar jurisdiction of these tribunals. Prize courts do not try criminal cases, or determine controversies arising between indi- viduals. The question before them in any case is, whether, according to the law of nations, a ship and cargo were liable to capture, and, if so, whether the capture was lawfully made. If their decision be in the affirmative, the ship and cargo are condemned ; if the decision be in the negative, they are -released. In its investigation of the circumstances of the capture, and in reaching a decree of condemnation, the court, 1 3 and 4 Victoria, chap. 65, 22. 2 Boyd's Wheaton, pp. 455, 456; Halleck, vol. ii., pp. 422, 423. 2YO OUTLINES OF INTERNATIONAL LAW. to a certain extent, acts in behalf of the state under whose authority it sits, and its decree fixes upon that government, in the highest degree, the responsibility for the seizure and condemnation of the enemy's property, or contraband goods. Its action, therefore, to a much greater degree than is the case with ordinary judicial proceedings, constitutes an act of sovereignty, and for this reason it cannot perform such an act within the jurisdiction of another sovereign state. The Law Applied by Prize Courts. In deciding cases of maritime capture prize courts apply the rules of international rather than municipal law. For this reason decisions in similar cases, rendered by the prize courts of other states, are regarded by them as consti- tuting precedents of a binding character. "Prize courts are in no way bound to regard local ordinances and municipal regulations, unless they are sanctioned by the law of nations. Indeed, if such ordinances and regulations are in contravention of the established rules of international jurisprudence, prize courts must either violate their duty, or entirely disregard them. They are not binding on the prize courts, even of the country by which they are issued. The stipulations of treaties, however, are obligatory upon the nations which have entered into them, and prize courts must observe them in adjudicating between subjects or citi- zens of the contracting parties." ' Procedure in Prize Cases. The principles of prize, as at present applied to maritime captures, are almost identical with the provisions of the Koman Law on 1 Halleck, vol. ii., p. 433; case of the Maria, Robinson's "Admi- ralty Reports," vol. i., p. 340; Phillimore, vol. iii., pp. 648, 649; Creasy, pp. 556, 557; Twiss, pp. 335-340; Manning, p. 472. WAR. 271 the same subject. " The allegations, proofs, and pro- ceedings are, therefore, in general modelled upon the Civil Law, with such additions and alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose. . . . Not only the pro- ceedings, but also the rules of evidence, are, in many re- spects, different from those of courts of common law ; and prize courts not only decide upon the claims of captors, but also upon their conduct in making the capture, and subsequently, and not infrequently, declare a forfeiture of their rights with vindictive damages. " In prize causes the evidence to convict or condemn must come, in the first instance, from the papers and crew of the captured ship. It is the duty of the cap- tors to bring the ship's papers into the registry of the district court, verify them on oath, and to have the examinations of the principal officers and seamen of the captured ship taken on the standing interrogato- ries, and not viva voce. It is exclusively upon these papers and examinations that the cause is to be heard in the first instance. If, from this evidence, the prop- erty clearly appears to be hostile or neutral, condem- nation or restitution immediately follows. If the property appears to be doubtful, or the case suspi- cious, further proof may be granted according to the rules which govern the legal discretion of the court, if the claimant has not forfeited his right to it by a breach of good faith. . . . Where the national character does not distinctly appear, or where the question of proprietary interest is left in doubt, further proof is usually ordered." ' 1 Halleck, vol. ii., pp. 435, 436. 272 OUTLINES OF INTERNATIONAL LAW. The common-law doctrines, as to the competency of witnesses, are not applicable to prize proceedings. No person is incompetent in those courts merely on the ground of interest. His testimony is admissible, sub- ject to all exceptions as to its credibility. 1 The rule that the testimony, for the condemnation of a prize, must be obtained, in the first instance, directly from documents or witnesses found on board the vessel at the time of her seizure, is always adhered to, unless satisfactory reasons are shown for departing from it in a particular instance.* Right of Appeal in Prize Cases. The right of ap- peal is invariably recognized in the laws creating prize courts and defining their jurisdiction ; and, on account of the importance of the interests involved, special provision is frequently made to enable prize cases to be carried up, by way of appeal, to a court of last re- sort, in a much shorter time than is usual, and without passing through any of the courts intervening between those of original and final jurisdiction. The laws of the United States provide for this contingency by per- mitting an appeal to be taken directly to the Supreme Court, from the District Courts, which, in the United States, have original jurisdiction in all cases of mari- time capture. Rules for Determining the Nationality of Ships and Goods. It -has been seen that, in the determination of a question of prize, the decision will depend upon whether the property seized has, or has not, the enemy character. To determine questions thus arising, as to 1 The Anne, Wheaton, vol. iii., p. 435. 2 The Zavalla, Blatchf ord, "Prize Cases, "p. 173; The Jane Camp- bell, Blatchford, "Prize Cases, "p. 101. WAR. 273 the nationality of ships and goods, certain rules are recognized by the prize courts of all nations. The more important of them are (a.) The nationality of ships and goods is, in general, determined by the domicile of their owner. Those owned by one domiciled in a hostile country are ene- my goods ; those owned by one having a domicile in a neutral state are neutral goods. (b.) The products of hostile soil, and articles manu- factured in enemy's territory, are hostile, by whomso- ever owned. (c.) The share of a neutral partner, in a firm having a hostile domicile, is hostile. (d.) If an owner of, or partner in, a business situated in a neutral state, has himself a hostile domicile, his share in the neutral house is regarded as enemy prop- erty. (e.) A neutral sailing under the enemy flag, or car- rying his register, or license to trade, is regarded as an enemy. (y.) The nationality of goods is determined by their ownership at the instant of capture ; a change made in ownership after that date is not recognized. (g.) " Vessels of discovery, or of expeditions of ex- ploration and survey, sent for the examination of un- known seas, islands, and coasts, are, by general consent, exempt from the contingencies of war, and are there- fore not liable to capture. Like the sacred vessel which the Athenians sent with their annual offerings to the temple of Delos, they are respected by all nations, be- cause their labors are intended for the benefit of all mankind. It has been the invariable practice of Eu- ropean powers to grant safe-conducts to ships sent to 18 274 OUTLINES OF INTERNATIONAL LAW. explore the Arctic regions, against being captured by ships of war on their return, in the event of war break- ing out during such absence." ' (A.) " Fishing-boats have also, as a general rule, been exempted from the effects of hostilities. As early as 1521, while war was raging between Charles V. and Francis I., ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800 the British and French governments issued formal instructions exempting the fishing-boats of each other's subjects from seizure." * References. For the definition and causes of war, see Halleck, vol. i., chaps, xv. and xvi. ; Heffter, 105-113 ; Kliiber, 231-237 ; Creasy, pp. 360-394 ; G. F. De Martens, liv. viii., chap, iii., 263- 265 ; Yattel, book iii., chap, i., 1-3 ; Phillimore, vol. iii., pp. 77-84. For the rales and usages of war, see Vattel, book iii., chap, ii., 6-23; chap, viii., 136-159; chap, ix., 166-173; Heffter, 123-129 ; Halleck, chaps, xviii.-xx. ; Hall, chaps, ii. and vii. ; " La Guerre Actuelle," by C. F. Rolin-Jacquemyn ; JSevue de Droit International, vol. ii. (1870), pp. 643-720 (series); Rivier, "Manuel des Lois de la Guerre;" Dr. Lieber "Instructions" (Hal- leck, vol. ii., pp. 36-51) ; " Rules of the Brussels Conference," Boyd's Wheaton, pp. 476-483. For the rules as to the treatment of property on land, see Vattel, book iii., chap, v., 69-77; chap, ix., 160-173; Heffter, 127-140; Halleck, chap. xxi. ; Hall, part iii., chap. iii. ; Bluntschli, " Le Droit de Butin en G6n6ral et SpScialement du Droit de Prise Maritime ;" Revue de Droit International, vol. ix., pp. 544-549. For the subject of tem- porary occupation, see Hall, part iii., chap, iv., 153-161 ; Halleck, 1 Halleck, voL ii., pp. 149-151. 9 Ibid., pp. 151, 152. WAR. 275 vol. ii., chaps, xxxiii. and xxxiv. ; Heffter, 185 ; Kliiber, 265 ; Boyd's Wheaton, 346; Creasy, pp. 483-495, and pp. 503-516. See also "Report of the Brussels Conference," Boyd's Wheaton, p. 476, " Parliamentary Papers, Miscellaneous," 1875, No. 1 ; De Martens, 282 b. For the subject of requisitions and contributions, see Creasy, p. 518-535 ; " Report of the Brussels Conference," " Par- liamentary Papers, Miscellaneous," 1875, No. 1 ; G. F. De Martens, 280; Halleck, vol. ii., chap, xvi., 15-37 ; Hall, 140-142 ; Vat- tel, book iii., chap, ix., 160-166. For maritime capture, see Hal- leck, vol. ii., chap, xxii., 1-24; chap, xxxi; Hall, part iv., chap, iii., 143-152 ; chap, vi., 167-175 ; Manning, chap. v. ; Heffter, 137-139; Nys, "La Guerre Maritime;" Dahlgren, "Interna- tional Law;" Wheaton, "History of the Law of Nations;" Blunt- schli," Le Droit cle Butin en General et Spe"cialenient clu Droit de Prise Maritime ;" Phillimore, vol. iii., pp. 559-647. For the pro- cedure of prize courts, see Halleck, vol. ii., chaps, xxxi. and xxxii. ; Manning, chap. xiii. ; Phillimore, vol. iii., part xi., pp. 648-769 ; Bulmerincq, " Le Droit de Prises Maritime ;" Revue de Droit In- ternational, vol. x. and xi. ; Bluntscbli, " Le Droit de Butin en GSugral et Specialement du Droit de Prise Maritime ;" Revue de Droit International, vol. ix. aiid x. ; Nys, " La Guerre Maritime," chap. vii. CHAPTEE XL NEUTRALITY. THE EIGHTS AND DUTIES OF NEUTRALS. 1. The term neutrality is applied to the relation ex- isting between the states which are parties to a war and those which refrain from taking part in its opera- tions, either as belligerents or allies. A neutral state is one which wholly abstains from participation in an existing war, rendering no aid or service to either belligerent in his military operations. Character of the Neutral Relation. In strictness, the relations existing between two states, at any time, must be either those of peace or war. International Law recognizes no intermediate condition. When a state occupies the position of a neutral it simply un- dertakes to maintain, without interruption, its peace- ful relations with both belligerents. The maintenance of such relations is, of course, more difficult in war than in time of profound peace ; and to this end a neu- tral state finds itself obliged to take such precautions, within its territorial limits, as will guarantee the con- tinuance of such friendly relations. For the same pur- pose it has recourse to such positive measures as will secure immunity from acts of belligerency within its territory, and compel respect for its sovereignty and independence. 2. History of Neutrality. The rules of neutral ob- ligation are of relatively recent growth, and, in their present form, are largely the result of a compromise be- NEUTRALITY. 277 tween the conflicting rights and interests of belligerents and neutrals. In ancient times the very conception of neutrality was impossible. So long as one powerful state aspired to or claimed universal dominion, it was impossible for other and less powerful states to main- tain that separate, independent existence which is es- sential to the recognition of state rights, and so to the development of a true theory of neutrality. War, among the ancients, was the normal state of mankind, in which all nations participated, either as principals or allies. Had any ancient state attempted to occupy a position remotely resembling that of neutrality, ac- cording to the modern acceptation of the term, and had it attempted to compel respect to its neutral rights, the belligerent against whom the attempt was made would have regarded it as an act of war, and would have governed itself accordingly. This state of affairs continued until the modern idea of state sovereignty and territorial independence began to be generally rec- ognized toward the close of the Middle Ages. The Origin and Development of the Neutral The- ory. The theory of neutrality is based upon, and de- duced from, the conception of a number of sovereign states, or political communities, each enjoying a sepa- rate existence, and each recognizing the separate and independent existence of every other. Such condi- tions were fulfilled by the Mediterranean cities that participated in the revival of commerce, toward the close of the period of the Dark Ages ; and it was among them that the modern theory of neutrality was devel- oped. The first conception of neutral right to acquire general recognition among them seems to have consist- ed in the idea that, at the outbreak of war between any 278 OUTLINES OF INTERNATIONAL LAW. two cities, the commerce of the rest, who remained friendly to the belligerents, as it in no way concerned the hostile cities, should undergo the least possible in- terruption. Out of this immunity grew the idea of the exemption of neutral or friendly goods from capt- ure in time of war. These cities were either independent communities, or were situated in separate states, and commercial rela- tions had become so firmly established among them by the close of the eleventh century, as to warrant the preparation of a code of Sea Laws containing their common maritime usages. The earliest of these codes, the Consolato del Mare, recognized the distinction be- tween the property of friends and enemies in war, and declared that the .former was exempt from capture and confiscation, even when found on an enemy's vessel. If such property were delivered at its destination, freight was due to the belligerent captor who effected the delivery. Similar provisions were contained in the later Sea Laws; indeed, so long as maritime com- merce was controlled by the cities of southern and western Europe, the treatment of neutral property at sea was marked by extreme liberality. The cities that were identified with the revival of commerce engaged in such pursuits for purely merce- nary reasons. They were rivals in commerce only, and none of them aspired to territorial, as distinguished from commercial, dominion. Their commercial rivalry was keen, however, and some of them asserted claims to the exclusive control of certain waters for purposes of trade. Conflicts of interest thus arose, which, at times, resulted in war ; but as their commercial inter- ests were, on the whole, of the first importance, their NEUTRALITY. relations were more generally peaceful than hostile. Upon the outbreak of war the greater number of cit- ies found it to be to their interest to refrain from participation in its operations, and to continue their friendly relations with both belligerents. The rela- tions of the non-belligerent, or neutral, cities with each other underwent no change. They were at peace, and simply maintained, without interruption, their ordina- ry commercial intercourse. As the greater number of these cities were usually at peace, it is easy to see that it was to the general interest that their commercial relations should suffer, during war, the least possible interruption. The necessity of combining to protect their merchant-vessels from the depredations of pirates must have suggested to them, at a relatively early date, the desirability of similar concerted action to secure a like immunity from acts of belligerency, and to com- pel respect for their neutral rights. The Rule of the Consolato del Mare. Out of this state of international relations grew the rule of the Consolato del Mare, that enemy goods were liable to capture, and neutral goods were exempt from capture, wherever found. This rule was generally accepted by the commercial cities, and, later, by the European powers. With occasional interruptions, due, in great part, to treaty stipulations, it continued to be the most generally-accepted rule upon the subject of the liability of property to capture at sea, until the adoption of the more liberal rule of the Declaration of Paris, in 1856. General Acceptance of the Rule of the Consolato del Mare. England adopted the rule at the organization of its admiralty courts during the reign of Edward III., and has consistently maintained it during her sub- 280 OUTLINES OF INTERNATIONAL LAW. sequent history. In a small number of treaties, made during the seventeenth and eighteenth centuries, the English government conceded the principle that free ships make free goods ; but these concessions were of a temporary character, and in nearly all cases were terminated by a positive disavowal of the milder rule. France, after observing the rule of the Consolato for nearly five hundred years, repudiated it in the Mari- time Ordinances of 1681. By that instrument the rule of capture was stated to be, that the goods of an enemy in a neutral vessel, and the goods of a friend in an en- emy's vessel, were alike liable to capture ; thus estab- lishing the rule that enemy ships make enemy goods. This continued to be the practice of France, subject to some modification in her conventional law, until the Declaration of Paris. The practice of Spain, during the period of her maritime supremacy, was similarly severe. The policy of the United States, as indicated in the decisions of the Supreme Court, has been sub- stantially the same as that of England. " The two distinct propositions, 1. That enemy's goods, found on board a neutral ship, may lawfully be seized as prize of war ; and, 2. That the goods of a neutral, found on board of an enemy's vessel, are to be restored, have also been explicitly incorporated into the jurispru- dence of the United States, and declared by the Su- preme Court to be founded on the law of nations. The rule, it was observed by the court, rested on the simple and intelligible principle that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemy's property, and the belligerent flag communicated no hostile char' NEUTRALITY. 281 acter to neutral property. The character of the prop- erty depended upon the fact of ownership, and not upon the character of the vehicle in which it was found. Nations, indeed, had changed this simple and natural principle of public law by conventions between themselves, in whole or in part, as they believed it to be for their interest ; but the one proposition, that free ships should make free goods, did not necessarily im- ply the converse proposition, that enemy's ships should make enemy's goods. If a treaty established the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule." ' The policy of the different departments of the United States government upon the question of maritime capture has not been the same. The courts of the United States, being to some extent controlled by the English precedents in prize cases, have, in the main, followed the English rule. The po- litical departments, on the other hand, have constantly endeavored to secure the greatest possible immunity from capture for private property at sea, and to that end have endeavored to obtain, by treaty and other- wiso, international consent, not only to the rule that free ships make free goods, but that all private prop- erty at sea, not contraband of war, should be exempt from capture and confiscation in time of war." 3. The Principle of Free Ships, Free Goods. The principle thai free skips make free goods was first rec- 1 The Nereide, Cranch, vol. ix., pp. 388-395, 428, cited by Philli- more, vol. iii., pp. 317, 318. 8 The principle of free ships, free goods, was incorporated in the treaties between the United States and France in 1778 and 1800; with the United Provinces in 1782; with Sweden in 1783, 1816, and 1827; with Prussia in 1785 and 1828; with Spain in 1795. 282 OUTLINES OF INTERNATIONAL LAW. ognized by Holland during the early part of the seven- teenth century, and was the result of the peculiar situ- ation of that state as a European power. Its military strength on land was far less in amount than that of the great states by which it was surrounded, and was never more than sufficient to the task of securing its independent political existence. The contrary, how- ever, was the case at sea, where the maritime power of the republic was exceeded, if at all, by that of Eng- land alone. The maintenance of its position as a mar- itime and commercial power thus became a matter of the first importance, and was so recognized by the suc- cession of able statesmen who directed the state pol- icy of the United Provinces during the seventeenth and eighteenth centuries. Having but little military strength, it was desirable that Holland should remain neutral in all European wars. It was still more desi- rable, however, that its immense carrying trade should be exempt from the effects of war at sea. But this exemption could only be obtained by securing the adoption of the rule that free ships made free goods, as the rule then prevailing was that of the Consolato del Mare, by which the ownership of property deter- mined its liability to capture. For the adoption of a new rule on the subject of maritime capture the gen- eral consent of nations was necessary, and that consent could only be obtained by treaty stipulations. The efforts of the Dutch government were therefore direct- ed to that end, and, as a result, a number of treaties were negotiated in which the rule of free ships, free goods, was recognized, and the liability to capture was determined by the nationality of the vessel, and not by the ownership of the goods, as in the ancient rules. NEUTRALITY. 283 As Holland was more generally neutral than bellig- erent, the adoption of the latter principle, in its fullest extent, would be, in the main, advantageous to her interests. She would gain more, as a neutral, by the adoption of the rule of free skips, free goods, than she would lose, as a belligerent, by the adoption of the rule of enemy ships, enemy goods. For this reason, in some of her treaties both of these principles were connected, and the liability of merchandise to capture on the high seas was determined by the nationality of the vessel, rather than by the ownership of the cargo. 1 The prin- ciple of free ships, free goods, was accepted by many of the less important commercial states of Europe. It was generally adopted by the Baltic powers, by France, in the Treaty of Ryswick, in 1657, and even by England, in a few treaties negotiated between the years 1658 and 1756. From the year 1715 onward, the maritime importance of Holland steadily declined ; and as that state was no longer directly interested in the mainte- nance of the new rule, the treaties upon which it had been based were not renewed, or were suffered to lapse ; and it appeared less frequently in the new treaties which were negotiated, from time to time, upon the subject of maritime capture. From the Peace of Par- is, in 1763, until the outbreak of the Crimean War, in 1853, the maritime preponderance of England was suf- ficient to prevent the general adoption of any principle of capture, more liberal, or less severe, than that con- tained in the rule of the Consolato del Mare, the justice of which the British government had always maintained. At the outbreak of the Crimean War the British 1 For lists of these treaties see Phillimore, vol. iii., pp. 824 etseq. 284 OUTLINES OF INTERNATIONAL LAW. government announced that, for the period of that war, it would "waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war." A similar waiver was made by the French government. In both cases the conces- sion was declared to be due to a desire to render the war " as little onerous as possible to the powers with which they remained at peace." l 4. The Declaration of Paris. The Treaty of Paris, which terminated the Crimean War, was signed on March 30, 1856. The representatives of the powers that had been parties to the treaty, at the sugges- tion of Count Walewski, the French plenipotentiary, assembled in conference for the purpose of discussing the rules of maritime capture, and, on the 16th of April following, adopted a body of rules modifying the existing rules of capture, which has since been known as the Declaration of Paris. The rules adopt- ed were four in number : (.) Privateering is, and remains, abolished. (b.) The neutral flag covers enemy's goods, with the exception of contraband of war. (.) A claim to the right of exclusive commercial intercourse with the territories whose coasts were washed by the waters over which jurisdiction was asserted. The first of these claims has been vigorously opposed since the middle of the seventeenth century, and with such success that all such claims have long since been abandoned, never to be reasserted. The second continued to exist, and was long recog- nized as just and equitable. As new territories were acquired by different European powers, either by colo- 1 See "Treaties and Conventions of the United States with Foreign Powers," Washington, 1871, pp. 733-735. NEUTRALITY. 291 nization or by conquest, the exclusive privilege of trading with them was claimed by the parent or con- quering state, and, tacitly or expressly, recognized by other states of the civilized world. The Jtfo?iopoly of Colonial Trade. Although the claim of a parent state to a practical monopoly of co- lonial trade was finally recognized, such recognition was not conceded without opposition, nor was the co- lonial monopoly itself a source of unmixed benefit to the state enjoying it. In time of peace it was a fruitful source of revenue, and afforded a favorable market for the productions of the mother country. In the event of war, however, if the parent state occupied the posi- tion of a belligerent, its vessels engaged in the colonial trade became liable to capture and confiscation, and it was impossible to measure the resulting loss by the money value of the ships and cargoes which were capt- ured by the enemy. A large part of the belligerent's commerce was destroyed, or diverted to other chan- nels, and was but slowly revived after the peace. To obviate this attempts were made, at times, by several European states, to transfer their colonial trade to a neutral flag, during the period of hostilities. As this course deprived a belligerent of the right to injure his enemy, by a resort to one of the most powerful means of coercion then recognized by the laws of war, such transfers of trade were stoutly resisted, chiefly by the British government; whose maritime preponderance had become so firmly established by the middle of the eighteenth century as to enable it to enforce respect, in so far as its own interests were concerned, to whatever vievrs of maritime warfare were deemed by it to be cor- rect, and in accordance with International Law. 292 OUTLINES OF INTERNATIONAL LAW. The Rule of 1756. The view thus advanced by Great Britain was extended to all colonial trade with neutrals by the Kule of 1793, but was immediately op- posed by France and Spain, and, at a later period, by the United States. A principle or rule, asserted, or even enforced, by one powerful state, is not a rule of International Law ; to become such it must receive the sanction of all, or nearly all, of the civilized states of the world. The principle underlying the llule of 1756 is now accepted, as applying to coasting trade, by the principal maritime powers. But the Kule of 1793 has received no such general sanction, and its enforcement, if persisted in, would have given rise to most serious complications. Its severity, however, was relaxed as practical free trade was gradually conceded to colonies ; largely upon their demand to enter the markets of the world upon equal terms with the mother country. 6. Development of the Theory of Neutrality among the Non-maritime States of Europe. The power and importance of the Mediterranean cities was entirely maritime, and was due to the energy and industry with which they prosecuted their commercial undertakings. They had but little power on land ; they rarely assert- ed claims to territorial supremacy, and so were rarely engaged in wars, other than those caused by their con- flicting commercial interests. It was for this reason that they progressed but little, in their development of the theory of neutrality, beyond the establishment of the rules regulating the subject of maritime capture. The relations of the great European states, which were gradually acquiring something of their present terri- torial form, were not such as to favor the development of any consistent or enduring theory of neutral obliga* NEUTRALITY. 293 tion. Their relations were more generally hostile than peaceful ; private and dynastic wars were common, and the brief periods during which hostilities were inter- rupted, or suspended, were usually devoted to the prep- aration of new schemes of conquest or dominion. Some progress must have been made, however, as the neces- sities of the great powers made peace occasionally de- sirable. But it was impossible for the conception of neutrality to obtain general recognition until the de- sire of the powers to remain at peace had acquired suf- ficient strength to become at least equal to the desire for war and conquest. In the absence of positive evi- dence, it is fair to presume that the rudiments of the theory were first recognized by those states which be- came neutral by reason of their distance from the thea- tre of war, and from a consequent lack of direct interest in the war, or its results. When the principle of the balance of power first began to be understood, it seems to have been regarded as possible to maintain it in no other way than by waging war against the state, or states, which threatened it. Indeed, it was not merely threatened, it was repeatedly attacked, and was in con- stant danger of overthrow, which could be effectively prevented only by force of arms. This state of affairs contributed powerfully to retard the growth of the theory of neutrality, since every important state in Europe was obliged to take part, as principal or ally, in the numerous wars which were undertaken when- ever the equilibrium was disturbed. Influence of England upon the Development of the Modern Theory of Neutrality. The insular situation of England, so placed as to be secure from attack ex- cept by sea, enabled, and to some extent constrained, 294: OUTLINES OF INTERNATIONAL LAW. that power to adopt a policy of partial abstinence from interference in Continental affairs ; and to decline tak- ing part in Continental wars in which it had no impor- tant interests at stake. ISTot only was England able to decline participation in such wars, thus placing her in a position of practical neutrality, but her power on land and sea was so great as to enable her to insist upon her neutrality being respected by belligerents. She thus became, to a certain extent, an advocate of neutrality, and an example to other powers of the ad- vantage of remaining neutral. General Acceptance of the Modern Theory in the Seventeenth Century; its Later History. Although its progress had been extremely slow, the principle of neutrality had received such general recognition by the middle of the seventeenth century, as to lead Grotius to devote a portion of his work to a discussion of the rights and duties of neutrals. From that time its prog- ress was more rapid. The Treaty of Westphalia large- ly diminished the power and influence of the Pope in secular affairs, and enabled the intercourse of the Eu- ropean states to assume a more normal character. Wars became less frequent, and were more closely restricted, in their operations and effects, to the states which were immediately concerned in them. The states which chose to occupy the position of neutrals, at the out- break of war, steadily increased in number ; and were led to insist more strongly upon their rights being re- spected by belligerents. It was during this period that the Dutch became in- terested in the amelioration of the rules of maritime capture. Their efforts were not permanently success- ful, however, and, as their influence declined, that of NEUTRALITY. 295 the United States began to be put forth in advocacy of the same cause. Their independence had no sooner been recognized than they began to assume importance as a commercial power. The tendencies of the new state were altogether peaceful. Its distance from Europe, not less than its peculiar governmental institutions, se- cured it an almost complete immunity from interfer- ence in European affairs, and enabled its people to devote their energies to projects of internal development, and to the extension of their already important commercial relations. The foreign policy of the United States was, from the first, one of strict non-participation in ques- tions of strictly European concern. Every considera- tion, therefore, of material interest and territorial po- sition, induced the new republic to occupy an attitude of neutrality in all wars of European origin. The jus- tice and advantage of this policy were fully appreciated by those who directed its foreign affairs, and so thor- oughly were the principles of neutral obligation un- derstood by them, that the early proclamations of neu- trality, issued by the United States, not only served to establish the permanent neutral policy of that power, but were soon generally accepted as furnishing an en- during standard of neutral right and duty. 7. Gradations of Neutrality. The crude and im- perfect views of neutral duty which formerly prevailed admitted of gradations, or degrees, of neutral obliga- tion. These were, in substance, violations of neutral- ity, and, as such, are no longer sanctioned by the prac- tice of nations. Such was the qualified neutrality of certain European states during the last century, by which the obligation to remain neutral was qualified by a previous treaty with one of the belligerents, stip- 296 OUTLINES OF INTERNATIONAL LAW. ulating to furnish him with certain aid in men, money, or war material in the event of a particular war, or upon the occurrence of hostilities of any kind with any state. Such action would not now be tolerated ; and a state entering into such treaty engagements would be regarded as an ally of the enemy so soon as it undertook to carry into effect its treaty stipulations. Permanent Neutrality. The status of permanent neutrality occupied by Switzerland and Belgium is in no way repugnant to International LaAV. The excep- tional circumstances in each case are, to some extent, based upon the size and territorial position of these states, upon their inferior military power as compared with the great states by which they are surrounded, and to a certain extent, also, upon considerations hav- ing to do with the preservation of the European bal- ance of power. Armed Neutrality. An armed neutrality is, in fact, an alliance of several powers, usually of a defensive character, though this is by no means essential. The purpose of such an alliance is to secure the mainte- nance of certain views of neutral right, which are be- lieved to be in danger, or whose justice is likely to be questioned. The most striking historical examples of such alliances are those of the armed neutralities, of the northern European powers, of 1780 and 1800. These alliances were made to defend the principle of free ships, free goods, which had been adopted by treaties between the Baltic powers, and which was opposed by England ; that power being, on both occasions, a bel- ligerent. Although the purpose of the alliance was not effected on either occasion, the agitation of the question continued, and without doubt contributed NEUTRALITY. 297 materially to bring about the adoption of the Declara- tion of Paris. If the commercial interests of several nations are threatened by unjust or unlawful measures, on the part of a belligerent, which they deem unjust or dangerous, there can be no question of their right to secure their menaced interests by such combinations as seem best calculated to accomplish the purpose. Strict Neutrality. As at present understood, a state, in becoming neutral, occupies a position of strict neu- trality. It rigidly abstains from aiding either bellig- erent, or from rendering to either of them any service, however slight or immaterial, which is calculated to assist him in his military operations. The friendly relations existing at the outbreak of the war are not interrupted, and it is to secure the continuance of such relations that a neutral state becomes charged with certain duties, during war, which do not exist during peace. These obligations are the measure of a neu- tral's duty in war. They are determined by Interna- tional Law, and have the same binding force upon all states. A failure in the performance of these duties is an injury to the particular belligerent who suffers by the failure of a neutral state to fulfil its obligations. These obligations have to do, in part with the conduct of the neutral state in its capacity as a body corporate, and in part with the conduct of persons within its ju- risdiction. 8. Neutral Duty of a State. A state, in its corpo- rate capacity, is not permitted to give any material aid to either belligerent, or to furnish money, ships, troops, subsistence, or munitions of war ; or to render any assistance which is likely to be useful to such bel- ligerent in his military operations. A neutral state, 298 OUTLINES OF INTERNATIONAL LAW. therefore, cannot permit its ports, or territorial waters, to be used as a base of hostile operations, or as depots of supply of articles susceptible of warlike use. It is forbidden to allow the enlistment of men, or the or- ganization or equipment, wholly or in part, of a hos- tile expedition, by sea or land, within its territorial limits. Some of these acts being, in substance, acts of sov- ereignty, are forbidden alike in peace and war. Oth- ers are permitted in peace, but are forbidden in time of war. The principle underlying the latter class is this. Any substantial aid or service, which contributes to the success of the military operations of one bellig- erent, enables him to inflict an injury upon his enemy with whom the neutral is at peace. The neutral state, therefore, in a more or less direct manner, has injured, or contributed to injure, a friend. As every state is the exclusive judge as to what injuries it shall regard as furnishing just cause for war, a neutral state may in this way, by a single act of service, become a party to the war. It is easy to see, therefore, that, if it were permitted to render such services with impunity, every important war would, sooner or later, involve all neu- tral states in its operations, and so one of the chief purposes of International Law would fail of attain- ment. War would again become the rule, as in an- cient times, and for much the same reason. Perma- nent peace would be impossible, and the relations of states would be subjected to a constant strain, which would seriously affect their prosperity and material development. Neutral Duties. A state in becoming a neutral can- not divest itself of the duties to other states, and to NEUTRALITY. 299 their individual subjects, which are incumbent upon it in time of peace. These continue in force, but certain precautions incident to, and made necessary by, the fact of \var, must be observed in their performance. Asylum to Troops and Ships. A neutral is obliged to grant an asylum to individuals of the enemy, who come into its territorial limits to escape pursuit, or to find protection from acts of hostility. They become subject to neutral jurisdiction so soon as they enter its territory. If fleeing from an enemy, they are dis- armed, and, at the discretion of the neutral govern- ment, may be removed to points in the interior, and may there be subjected to such measures of police su- pervision, or positive restraint, as it may deem neces- sary to secure respect for its neutrality. If in large numbers and without means of support, these fugitives are made the subject of treaty arrangements, and are usually supported at the expense of their own govern- ment. The French troops who fled to Belgium, after the battle of Sedan, were disarmed and conveyed to a point at some distance from the frontier, and the ex- pense of their maintenance was ultimately defrayed by the French government. Right of Asylum in the Case of Public and Private Vessels. A similar right of asylum exists in the case of public and private armed vessels, and to merchant ships belonging to either belligerent. They may seek refuge in a neutral port from the perils of the sea, or from a superior force of the enemy. The protection of the neutral government is extended to them so soon as they come within its territorial waters ; and it may resist, by force if need be, any hostile attempts that are directed against them while within its jurisdiction. 300 OUTLINES OF INTERNATIONAL LAW. As the favor is that of asylum only, the asylum may terminate at the will of the neutral. "When vessels of two belligerents are found in a neutral port, at the same time, it is within the power of the neutral to es- tablish such regulations, in regard to their conduct and departure, as will make it impossible for an engagement to take place in the immediate vicinity of the port. This object is usually attained by the enforcement of the twenty -four hour rule, by which, when one belliger- ent vessel departs, the other is forbidden to sail within twenty-four hours. This rule has been so frequently and generally applied, in recent times, as to have re- ceived the universal sanction of nations. Neutral Territory. The territory and territorial waters of a neutral state are sacred from belligerent intrusion, save with the consent of the neutral govern- ment. Such consent may be granted, or denied, to both belligerents ; but, according to the present rule, cannot be granted to either to the exclusion of the other. Captures made in neutral waters are restored, or indemnified, even after they have been condemned by a prize court, since such courts have no jurisdiction over prizes made, except on the high seas, or within the territorial waters of a belligerent. "It belongs, however, exclusively to the neutral government to raise objection to a title founded upon a capture made within neutral territory. So far as the adverse bellig- erent is concerned, he has no right to complain if the case be tried before a competent court. 1 The gov- ernment of the owner of the captured property may, indeed, call the neutral to account for permitting a 1 The Arrogante Barcelones, Wheaton, vol. vii., p. 490. NEUTRALITY. 301 fraudulent, unworthy, or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a bellig- erent." ' The right of a public armed vessel of a belligerent to enter a neutral port, when not in distress, is usually conceded ; and is presumed, unless notice to the con- trary is formally given by the neutral government. They may be forbidden to enter certain ports, or to enter neutral territory at all except in distress, but the rule must bear equally upon both belligerents. Pri- vateers may be denied entrance to neutral ports, es- pecially if the neutral government is a party to the Declaration of Paris. The bringing in of prizes is still authorized by existing treaties, though the present tendency is to restrict the right within the narrowest limits, if not to deny it altogether. The condemnation or sale of such prizes by a neutral prize court, or by a belligerent prize court sitting in neutral territory, is no longer permitted. A belligerent war ship which has been permitted to enter a neutral port, may procure there such supplies, not contraband of war, as may be permitted by the neutral government. The supply of coal is now made the subject of special regulation, and only a limited amount is allowed to be taken in. 3 1 Phillimore, vol. iii., p. 287. On Jan. 31, 1862, the British government adopted the rule that a belligerent armed vessel was to be permitted to receive, at any British port, a supply of coal sufficient to enable her to reach a port of her own country, or a nearer destination. A second supply was not to be given within three months, save with the express permis- sion of the government. 302 OUTLINES OF INTERNATIONAL LAW. 9. Responsibility of a Neutral State for the Acts of its Subjects. A different rule applies to the conduct of the subjects of a neutral state, than is applied to the neutral state itself, in its relations with the belliger- 3nts. It has been seen that the restrictions, to which neutral states are subject, are such as will prevent them from aiding either belligerent in his military opera- tions, and, at the same time, be the smallest possible consistent with the purpose of the war. The subjects of a neutral state, however, at the outbreak of a war, are engaged in many different occupations, over some of which the belligerent is given jurisdiction to the extent of actual prohibition. They are also engaged in the production, manufacture, and sale of certain articles which become contraband of war if sold to an enemy, or found at sea en route to an enemy's port. In all other respects their undertakings are innocent, and are not interrupted, or affected, by the fact of war. The manufacture of contraband articles, and even their sale, in neutral jurisdiction, continues to be an inno- cent and lawful occupation. The neutral state itself ought not to be expected to interfere with the pursuits of its subjects, so long as they are not likely to com- promise the position of neutrality which it assumed at the outbreak of the war. The power placed in the hands of the belligerents to blockade the ports of an enemy, to search neutral vessels on the high seas, and to seize and condemn such portions of their cargoes as are contraband of war, or are destined to a block- aded port, are ample to protect them from being in- jured by the acts of individuals. If they do not, or cannot, make their powers effective, they cannot, of right, expect neutral states to assist them in their en,- NEUTRALITY. 303 deavors. Nor can they expect neutrals to resort to severe police measures, against their own subjects, in a matter with which they have no direct concern. View of England and the United States. The prin- ciple involved was well stated by Mr. Webster in his reply to the Mexican government, which had com' plained of certain alleged violations of neutrality, on the part of individuals, in the supply of arms to Texas, then at war with Mexico. " It is not the practice of nations to prohibit their own subjects, by previous laws, from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the government of the United States, neverthe- less, was not bound to prevent it ; could not have pre- vented it, without a manifest departure from the prin- ciples of neutrality, and is in no way answerable for the consequences. . . . The eighteenth article (of the treaty between the United States and Mexico) enumer- ates those commodities which shall be regarded as con- traband of war ; but neither that article, nor any other, imposes on either nation any duty of preventing, by previous regulation, commerce in such articles. Such commerce is left to its ordinary fate, according to the law of nations." * Mr. Layard, the Solicitor-General of the British gov- 1 Lawrence's Wheaton, p. 813, note, citing Webster's Works, vol vi., p. 452, "Letter of Webster to Thompson," July 8, 1843. 304 OUTLINES OF INTERNATIONAL LAW. ernment, in a speech in the House of Commons, adopt ed the view above stated, and added, " The only law which enables Her Majesty's government to interfere in such cases is called the Foreign Enlistment Act, and the whole nature and scope of that act is sufficiently and shortly set out in its title. It is ' An act to pre- vent the enlisting and engagement of Her Majesty's subjects to serve in a foreign service, and the fitting out or equipping in Her Majesty's dominions, of ves- sels for warlike purposes, without Her Majesty's li- cense.' That act does not touch, in any way whatever, private vessels which may carry cargoes, contraband, or not contraband, between this country and any port in a belligerent country, whether under blockade or not ; and the government of this country, and the gov- ernments of our colonial possessions, have no power whatever to interfere with private vessels under such circumstances. " It is perfectly true that in the queen's proclama- tion there is a general warning at the end, addressed to all the queen's subjects, that they are not, either in violation of their duty to the queen, as subjects of a neutral sovereign, or in violation or contravention of the law of nations, to do various things, one of which is carrying articles considered and deemed to be con- traband of war, according to law or the modern usages of nations, for the use or service of either of the con- tending parties. That warning is addressed to them to apprise them that if they do these things they will have to undergo the penal consequences by the statute, or by the law of nations, in that behalf imposed or denounced. In those cases in which the statute is silent, the govern- ment is powerless, and the law of nations comes in. NEUTRALITY. 305 " The law of nations exposes such persons to have their ships seized, and their goods taken and subjected to confiscation, and it further deprives them of the right to look to the government of their own country for protection. And this principle of non-interference in things which the law does not enable the govern- ment to deal with, so far from being a violation of the duty of neutrality which the government is anxious to comply with is in accordance with all the princi- ples wliich have been laid down by jurists, and more especially by the great jurists of the United States." ' Continental View upon the Subject of Governmental Control of the Acts of Individuals. The views above expressed are those which have long been held upon this subject in England and the United States. Most Continental writers are at variance with this, and con- tend that more or less of direct governmental inter- ference is necessary. This difference of view arises from the fact that the governments of nearly all the Continental states of Europe are highly centralized in character, and all commercial undertakings are there- fore subject to a more or less complete governmental supervision and control. This is the case in time of peace, and is an incident of internal administration. In time of war it is extremely easy for any of these governments to regulate, or even to effectually pro- hibit, contraband trade on the part of its subjects, if it is deemed desirable to do so as a matter of state poli- cy. In England and the United States no such super- 1 Lawrence's "Wheaton, pp. 813, 814, citing remarks of Solicitor- General Layard in the House of Commons, Feb. 22, 1862. See also "Annual Message of President Pierce," 1854, "Executive Docu- ments of the United States," 1854-1855. 20 306 OUTLINES OF INTERNATIONAL LAW. vision exists in time of peace ; and it could be estab- lished in time of war only as the result of legislation upon the subject, and could be maintained only at great expense, and at the constant risk of violating some of the existing constitutional guarantees of indi- vidual right. 10. Neutral Rights. A neutral state, as such, re- ceives no addition to its sovereign rights, either in number or extent, at the outbreak of war. It is at peace with both belligerents, and they have no more right to commit acts of hostility within its jurisdiction in time of war, than in time of peace. The neutral, therefore, may not only insist 'upon a complete immu- nity from such acts of belligerency, but may use force to compel respect to its sovereignty within the sphere of its exclusive jurisdiction, and to resist acts of ag- gression originating with either belligerent, and di- rected against the neutral state, or against the other belligerent, in neutral territory. Violations of neutral right have occurred not infre- quently in the past, and," as the sphere within which neutral rights are each year more strongly insisted upon is steadily increasing, such violations are likely to occur quite as frequently in the future. A neutral state may therefore insist (1) upon an entire immu- nity from acts of belligerency within its territorial waters. A public vessel, by sailing through the coast sea of a neutral state, in no way violates its neutrality. This is especially true when the act is done in the simple prosecution of a voyage, and when not in pur- suit of the enemy. It has been seen that a belligerent vessel, either public or private, is entitled to an asylum in the port of a neutral from danger of capture by NEUTRALITY. 307 an enemy as well as from the perils of the sea. An armed vessel, therefore, which pursues an enemy into neutral waters, or effects a capture there, has violated the sovereignty of the neutral state. It may be forci- cibly compelled to desist from the pursuit, and all captures made by it in neutral jurisdiction are illegal, and must be restored. The sovereignty of the neu- tral state has been invaded, and it may resort to such measures of prevention, or redress, as it may deem best suited to the emergency of the case. (2.) A neutral state is entitled to a similar immunity from acts of belligerency on land. Troops fleeing from an enemy may seek an asylum in neutral terri- tory. They must release their prisoners, however, give up all booty and captured property, and surrender their arms during the period of their sojourn upon neutral soil. The enemy must cease his pursuit at the neutral boundary. Should he continue it farther his act is one of invasion, and would be properly re- garded as an act of hostility by the neutral state whose sovereignty is offended. Should either bellig- erent undertake to perform acts, within the territory of a friendly state, which are inconsistent with the neutrality of that state, the neutral may not only cause such acts to be immediately desisted from, but may punish the agents of the belligerent, if their acts are in violation of its municipal laws, or may forcibly eject them from its territory. This subject is illustrated by the cases of the Ches- apeake and the Florida. Case of the Chesapeake. The Chesapeake was one of a line of passenger steamers plying between the ports of Xew York and Portland, Maine. In 18G3, Avhile on 308 OUTLINES OF INTERNATIONAL LAW. her way between those points, she was forcibly seized by a number of her passengers, who claimed to be in the naval service of the Confederate States. In effecting the seizure several of the crew were killed and wound- ed, and the rest were set on shore. The vessel was navigated for a short time by its captors, but was final- ly abandoned by them, in an unfrequented bay on the coast of Nova Scotia. She was afterward found and seized, in British territorial waters, by a public armed vessel of the United States. The act was complained of by the British government as a violation of its neu- trality, and a demand was made that the vessel be sur- rendered and the prisoners restored to British soil. The demand was acceded to by the United States, who disclaimed any intention of exercising any authority within the territorial jurisdiction of Great Britain. The government of the United States, in complying with the demand for the surrender of the property and persons, proposed that those who had been con- cerned in the forcible seizure of the vessel should be surrendered, with a view to their prosecution for the crime of piracy. The British government declined to consider this proposition until the captured persons had been returned to its territorial jurisdiction. The ship was afterward restored to its owners. 1 Case of the Florida. In 1864 the Confederate war steamer Florida entered the port of Bahia, Brazil, for the purpose of obtaining coal and provisions, and of ef- fecting some necessary repairs. "While thus engaged, the "Wachusett, a public armed vessel of the United States, entered the same port. The Brazilian govern- 1 Bevel's Wheaton, pp. 498, 499; Dana's Wheaton, p. 210, note. NEUTRALITY. 309 nient, fearing a conflict, took such precautions as it deemed proper to prevent its occurrence, and, in ac- cordance with its port regulations, assigned an anchor- ing-ground to each of the belligerent vessels. The commander of the "Wachusett, taking advantage of the absence, at night, of a number of the officers and crew of the Florida, sent a boat's crew to attach a cable to the Confederate steamer, towed her out of the harbor, and conveyed her as a prize to the United States. This flagrant violation of neutral rights was at once complained of by the Brazilian government. The act was promptly disavowed by the United States. An apology was offered, and reparation made by sa- luting the Brazilian flag in the port of Bahia. The crew of the Florida were restored to Brazilian juris- diction. The captured vessel foundered in Hampton Roads, under circumstances which were satisfactorily explained to the Brazilian government. 1 " The resti- tution of the ship having thus become impossible, the President expressed his regret that the sovereignty of Brazil had been violated, dismissed the consul at Bahia, who had advised the offence, and sent the commander of the Wachusett before a court-martial." a NEUTBAIJTY LAWS. 11. Those municipal laws of a state which are intended to prevent violations of its neutrality in time of war are called, in general, neutrality laws. The title varies in different states, and in many cases is based upon 1 Boyd's Wheaton, p. 499; Hall, p. 544; Dana's Wheaton, p. 209, note. See also Secretary Seward's letter of explanation, "Foreign Relations of the United States," 1863, 1864. a Bernard, "Neutrality of England," etc., p. 433. 310 OUTLINES OF INTERNATIONAL LAW. the particular violation of neutrality which was first made the subject of positive legislation. 1 Neutral Obligation Determined by International, not Miinicipal,Law. It has been seen that the neutral obligation of a state is determined by international, and not by municipal, law. The conduct of every state, which assumes the position of a neutral in war, is therefore measured by the standard of International Law. If it fails in the performance of a neutral duty, it cannot plead the inefficiency of its municipal laws in extenuation of its offence, nor will an exact and rig- orous enforcement of such laws be regarded as a ful- filment of its obligation, if their provisions are not in accordance with the international standard. The neu- trality laws of a state may therefore be, in point of efficiency, less than, equal to, or greater than the stand- ard of neutral obligation as determined by the law of nations ; or there may be no such municipal laws. In all these cases the responsibility of the state is precise- ly the same. Most modern states, however, have covered this field of legislation more or less completely, either with posi- tive laws, defining rules of conduct for persons subject to their jurisdiction, and imposing suitable penalties for their violation ; or by general laws, or constitutional provisions, vesting discretionary powers in certain de- partments of government, to be used for the purpose of preventing violations of neutrality on the part of 1 In England the first legislation on the subject \vas caused, in the time of James I., by the enlistment of recruits in England for ser- vice in other European armies. For this reason the British neu- trality laws have received the name of the "Foreign Enlistment Act." NEUTRALITY. 31 1 individuals. Violations of neutral duty by a state, in its corporate capacity, are questions of state policy that are rarely made the subject of municipal legisla- tion. Neutrality laws, as such, have chiefly to do with the acts of individuals. They permit or forbid partic- ular acts, and vest suitable powers of enforcement in certain officials, or departments of government. English Neutrality Laws. The first legislation in England on the subject of neutrality was had in the reign of James I. The statute was intended to regu- late, rather than prohibit, the enlistment of British sub- jects in foreign services. 1 This statute was twice amend- ed during the reign of George II., each time in the di- rection of greater severity. 2 The first general law on the subject of neutrality was the Foreign Enlistment Act passed in 1819, during the regency. 3 It remained in force until 1870, when the present act was passed. 4 " The statute of 1819 was, with a few unimportant exceptions, never attempted to be enforced until the period of the American Civil War. Its deficiencies were then fully discovered, and the escape of the Ala- bama, the Treaty of Washington in 1871, and the Geneva Arbitration were the grave consequences." & The neutrality laws now in force in the British em- pire are those contained in what is known as the For- eign Enlistment Act of 1870. They extend to all the dominions of Her Majesty, including the adjacent ter- ritorial waters. The act forbids British subjects to accept, or agree to accept, a commission in the niili- 1 3 James I., chap. 4. 9 9 George II., chap. 30; 29 George II., chap. 17. 8 59 George III., chap. 69. 4 33 and 34 Victoria, chap. 90. * Phillimore, vol. iii., p. 244 312 OUTLINES OF INTERNATIONAL LAW. tary or naval service of a state at war with any state with which Her Majesty is at peace ; to leave the realm with intent to engage in such service, or to induce another person to embark under false representations as to such service; and imposes a penalty upon any master of a ship who knowingly takes such persons on board ship, with intent to carry them to such state. It is also forbidden under severe penalties of fine and imprisonment (a.) " To build, or agree to build, or to cause to be built, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state. (5.) " To issue or deliver any commission for any ship with intent or knowledge, or having reasonable cause to believe, that the same shall or will be em- ployed in the military or naval service of any foreign state at war with any friendly state. (c.) " To equip any ship, with intent or knowledge, or having reasonable cause to believe, that the same shall or will be employed in the military or naval ser- vice of any foreign state at war with any friendly state. (d.) " To despatch, or cause, or allow to be despatched, any ship with intent or knowledge, or having reason- able cause to believe, that the same shall or will be employed in the military or naval service of any for- eign state at war with a friendly state." When a ship is built by the order of a foreign state, at war with a friendly state, the presumption is that it is intended for the naval service of the former state. It is also forbidden to increase the armament, equip- ment, or force of such ships, or to aid in their con- NEUTRALITY. struction or equipment, and it is also forbidden to fit out, or aid or assist in fitting out, any expedition against the dominions of a friendly state. The ships engaged in such acts are to be forfeited, and penalties of fine and imprisonment are to be imposed upon all persons violating any of the provisions of the act. 1 The provisions of this act are of the most stringent character, and, if rigidly enforced, are calculated to prevent any act, on the part of any person within the jurisdiction of Great Britain, which can, in the re- motest degree, compromise the neutrality of the Brit- ish government. Neutrality Laws of the United States. The neutral- ity laws of the United States are chiefly contained in the acts of June 5, 1794, and April 20, 1818. By these acts it is declared a misdemeanor for any citizen of the United States to accept or exercise a commission to serve a foreign state in war against any friendly state ; or to enlist, or enter himself, or hire or retain another person to enlist, or to go beyond the jurisdic- tion of the United States to enlist, or with intent to be enlisted, into such foreign service, or to fit out or arm ; or to increase or augment the force of any armed vessel, with the intent that such vessel shall be em- ployed in the service of a power at war with a friend- ly state ; or to begin, set on foot, or provide or prepare the means for, any military expedition or enterprise against the territory of any foreign state with whom the United States is at peace. The President is authorized to compel any foreign vessel to depart, which, by the law of nations or by 1 33 and 34 Victoria, chap. 90. 314 OUTLINES OF INTERNATIONAL LAW. treaty, ought not to remain within the territorial waters of the United States, and is given power to use the public armed force to carry the provisions of the act into effect, and to enforce the observance of the neutral duties required by law. 1 It is worthy of remark that the neutrality laws of the United States, though passed nearly seventy years ago, are at the present time fully in accordance with the standard of neutral obligation as determined by International Law. The laws of both England and the United States are silent upon the question of the manufacture and sale of contraband of war, within their territorial ju- risdiction, except in the case of building, arming, or equipping ships, fitted for, or adapted to, warlike uses. Dealing in contraband is forbidden in England, by proclamation, at the outbreak of a foreign war. It has never been forbidden in the United States. The policy of both governments has been to leave this question to be regulated by belligerents, in the exer- cise of the powers placed in their hands, for that pur- pose, by the law of nations. Neutrality Laws of Other States. The provisions of the French law on the subject of neutrality are those contained in Articles 84 and 85 of the Penal Code. The first of these imposes a penalty of banish- ment for any conduct of a subject which, without the approval of his government, exposes the state to a declaration of war. If war actually results, the pun- ishment is increased to transportation. The second article punishes with banishment any acts, of a subject, 1 "Revised Statutes of the United States," 1029-1031. NEUTRALITY. calculated to expose Frenchmen to reprisals. The pre- cise acts which are so punishable are left to judicial determination, and, thus far, but three cases have arisen in which the laws were regarded as applicable. The responsibility of making suitable regulation on the subject of neutrality rests, in France, upon the government, and is usually made the subject of proc- lamation, whenever the outbreak of war makes it nec- essary for France to assume an attitude of neutrality. The task of the government in this respect is made easy of performance by the fact that the manufacture and sale of the most offensive forms of contraband of war, such as powder, fire-arms, ammunition, and pro- jectiles, are made the subject of state regulation. It is, therefore, not difficult for the government, at the outbreak of war, to impose such additional restrictions upon the manufacture and sale of contraband articles as will effectually prevent violations of its neutrality. The absence of positive law on the subject enables France to adapt its neutrality regulations to the stand- ard of International Law at any particular epoch ; an advantage which is shared by all of the highly cen- tralized governments on the continent of Europe. The law and practice of Belgium, Brazil, Italy, Holland, Russia, Spain, and Portugal are similar to those of France. Austria and Prussia have no laws upon the subject, and seem to need none, as ample powers to prevent violations of neutrality are vested in the re- spective governments. The laws of Denmark and Sweden are quite elaborate, resembling in many re- spects those of England and the United States. 1 12. Case of the Alabama. The most conspicuous 1 "Report of English Neutrality Laws Commission of 1870," p. 40. 316 OUTLINES OF INTERNATIONAL LAW. illustration, in recent times, of the failure of a state to observe its neutral obligations, is that afforded by the case of the Alabama. The complainant in the case was the United States. The injury alleged was that certain aid had been ob- tained by the Confederate States in England during the rebellion. The services which were made the ground of com- plaint are susceptible of classification under two heads : (#.) The obtaining of arms and munitions of war by the Confederate States in England. (5.) The fitting -out of hostile expeditions within English jurisdiction. These causes of complaint will be discussed sepa- rately. The first of them furnished no reasonable ground of complaint to the United States ; the second constituted a violation of the law of nations. The Obtaining of Arms and Munitions of War. The outbreak of the civil war in America found both parties to its operations but poorly prepared for a con- test of the magnitude which that struggle immediately assumed, and both belligerents were obliged to have recourse to foreign markets for the supplies of arms and munitions necessary to enable them to place great armies in the field. " The demands of the war, as it advanced, were met in large measure by private manu- facturers in the Northern States ; but the export of arms and military stores went on freely and without inter- mission, so long as the struggle lasted, and the supplies drawn by the Federal government from [England] appear to have considerably exceeded in value those obtained by the South. " An export trade, more or less considerable, in arms NEUTRALITY. 317 and munitions of "war, was carried on from England to both the northern and southern ports of the United States. Whether the goods were purchased ia the English market by persons who came over for the pur- pose, or were shipped to order, or were consigned for sale in America on account of the shippers ; whether the purchases were effected by agents of the two gov- ernments respectively or by private speculators, and whether these agents or speculators were American or English firms trading in New York or firms trading in Charleston, I do not know, and it is absolutely im- material to inquire. Xone of these circumstances could affect in the slightest degree the character of the transaction. Articles of military use, when trans- ported over sea, to the ports of either belligerent in neutral ships, are, during the transit, designated con- traband, and may be captured under the neutral flag, the neutral carrier suffering the loss of his freight, and getting no compensation for the interruption of his voyage and the breaking-up of his cargo." l 1 Bernard, "The Neutrality of Great Britain during the Ameri- can Civil War," pp. 332, 333. In Sir Montague Bernard's able work, from which the above citation is made, the following table appears. It purports to give the total value of exports of arms and munitions of war to the United States and to the British West Indies during the period of the civil war. It is interesting as showing the amount of contraband trade that went on during that period. Years. Shipments to the United States. Shipments to British West Indies. 1860 45,076 6,050 1861 119,555 59,110 1862 999,197 367,578 1863 425,081 200,402 1864 36,802 74,983 1865 23,625 29,420 1866 82,345 4,795 318 OUTLINES OF INTERNATIONAL LAW. With these transactions, whatever part may have been taken in them by British subjects or others with- in British jurisdiction, International Law has nothing to do ; and of these acts, whether of dealing in, or car- rying contraband, or violating the blockade, the United States had no valid reason to complain. On the con- trary, on at least two previous occasions, the last of them but a few years previous to the outbreak of the rebellion, citizens of the United States had themselves openly engaged in similar practices, with the full knowl- edge and presumed consent of their own government, as expressed in the annual message of its chief execu- tive. 1 The Fitting-out of Hostile Expeditions within Eng- lish Jurisdiction. " Among the most pressing needs of the Confederates was that of sea-going ships capa- ble of being used for war. Such vessels as they pos- sessed were, for the most part, very small. There was probably not one of these which could have ventured to engage a Federal cruiser of any class without cer- tain destruction. In coast warfare they were able to achieve one or two brilliant, though unprofitable, suc- cesses. But the construction of a large sea-going steam- er seems to have been beyond their power ; their only ships were such as had fallen into their hands ; and they either had not the materials and machinery for turning out marine steam-engines, or were unable to use them." a To enable the Confederates to overcome this dispar- ity of force at sea a scheme was projected of procur- 1 Message of President Pierce, 1854, "Executive Documents of the United States," 1854, 1855. 1 Bernard, "The Neutrality of Great Britain," etc., p. C3G. NEUTRALITY. ing by purchase, in England, a number of war-steam- ers for the Confederate navy. This undertaking was / o quite different from those that had preceded it, inas- much as it was proposed that these vessels, so soon as they had been completed and equipped 'for war, wheth- er in England or elsewhere, should, without being sent to any port within the jurisdiction of the Confederacy, at once engage in hostile operations against the United States. With this end in view, agents were despatched to England with instructions to arrange for the pur- chase, or construction, of a number of swift and pow- erful steamers. These agents were to arrange all the details of purchase or manufacture of armament and equipment, and were to transfer them, when complet- ed and ready for service, to certain designated officers of the Confederate navy. These instructions were carried out in all their es- sential details. The ships, three in number, which were afterward known as the Florida, Alabama, and Shenandoah, were purchased or constructed in Eng- land. Their armament and equipment were obtained, and a portion of their crews enlisted, in British terri- tory, without encountering any obstacles which do not seem to have been overcome without special difficulty. In every case the ships left England without guns or ammunition on board, and but partly manned ; and in every case the articles needed to prepare the vessel for active service, and a part or the whole of the crew, were shipped from England by another vessel; the equipment being completed at a point previously agreed upon, usually in neutral waters, and never within Brit- ish jurisdiction. The question now arises as to what was the rule or 320 OUTLINES OF INTERNATIONAL LAW. usage of International Law upon the subject of neu- tral duty in 1861 ; for by that rule the responsibility of England, as a neutral power, must be determined. It has been seen that the neutral obligation of a state, at any time, is fixed and determined by interna- tional, and not by municipal, law. It has also been seen that that obligation is the same, whatever may be the provisions of municipal law upon the subject ; indeed, it is not at all necessary that its municipal laws should contain any such provisions. Their exist- ence presumes an intention, on the part of a state, to fulfil its neutral duties. Their absence may imply the contrary ; or it may imply that some department of the government has sufficient power in the premises to make such provisions unnecessary. If they exist, and are inadequate to the purpose, their inadequacy can- not be pleaded in extenuation of a violation of neutral duty ; if they do not exist, their absence cannot be alleged to excuse a failure to observe a neutral obliga- tion ; nor, finally, can their enforcement, by obscuring the real issue involved, or by distracting the atten- tion of a neutral state from its real responsibility, at all diminish that responsibility, or change its char- acter. In this connection two questions arise. The first is, did war exist ? If there was not in existence at that time an open, public war, there could be no belliger- ents, and consequently no neutrals; and, whatever may have been the relation existing between England and the United States, it was not that of a neutral to a belligerent. This question hardly admits of discus- sion. When insurrection or rebellion occurs in a state, two courses of proceeding are open to the central gov- NEUTRALITY. 321 eminent, either of which may be pursued in its sup- pression. These are : (a.} The method by Municipal Law, in which the at- tempt is made to restore the supremacy of the govern- ment by a rigid enforcement of the criminal law, mil- itary force being used to support the civil authority. (.) The method by International Law, involving the recognition of the insurgents as having belligerent rights, and the use of military force in accordance with the laws of war. The United States chose the latter method. This made it necessary for other powers to follow its ex- ample, and to recognize the insurgents as belligerents, which they did by the issue of proclamations of neu- trality. By the issue of such a proclamation England assumed the attitude of a neutral, and by so doing be- came charged with the duties, and vested with the rights, of a neutral state in time of war. Standard of Neutral Obligation in 1861. The next question is, what was the standard of neutral obliga- tion, as at that time recognized and sanctioned by the law of nations ? To the answer of this question it is ; perhaps, fortunate that the injuries which made the rule necessary, and the deduction of the rule itself, were then relatively recent events, and so were pre- sumably fresh in. the minds of those by whom the government of England was carried on. During the years between 1789 and 179-i, England and France being then belligerents, several attempts were made, by agents of France in the United States, to fit out and arm certain ships to prey upon English commerce. Upon proper representation, in behalf of the latter power, the government of the United States 21 322 OUTLINES OF INTERNATIONAL LAW. took the most vigorous measures to bring about a dis- continuance of the practice, and, to enable similar ac- tion to be taken in future cases of the same kind, the Neutrality Act of 1794 was passed. During the period between 1816 and 1818 similar attempts were made to fit out and arm vessels, within the jurisdiction of the United States, to operate against Spanish commerce, under commissions, or letters of marque, from the revolted Spanish colonies in Central and South America. In this instance the Spanish min- ister " complained that some thirty vessels, specifically named, the property of American citizens, were thus preying on Spanish commerce. The representative of Portugal made similar complaints." l To remedy this wrong the United States Neutrality Act of 1818 was passed. It was more stringent in its provisions than had been that of 1794, and was, for that reason, better calculated to prevent acts on the part of individuals which were likely to compromise the neutrality of the United States. Similar practices were resorted to in England, and, proper representations having been made by Spain, an attempt was made to remedy the wrong complained of, by the passage of the " Foreign Enlistment Act of 1819," the first British neutrality act which was in- tended to have general application, and to prevent and punish acts of individuals which might have the effect of compromising the foreign relations of Great Britain as a neutral power. This act was in force during the period of the Civil War. 1 Opinion of Sir Alexander Cockburn in the Geneva case, " For- eign Relations of the United States," 1872, "Geneva Arbitration/ vol. iv., p. 256. NEUTKALITY. 323 Here are three instances in each of which a sovereign state, in the most solemn and formal manner, recog- nizes the fact that the acts of fitting-out and arming or equipping of expeditions, within its jurisdiction, for the purpose of carrying on hostilities against a friend- ly state, are not only unjust and wrong, but are so far opposed to the law and usage of nations as to consti- tute a serious violation of neutrality on the part of the government permitting them. Conclusion as to Neutral Obligation. In the face of these facts, it is useless to cite the opinions of text- writers. Their views and opinions are based upon such facts, and the rules deduced by them, to have value, must be supported by just such instances of interna- tional usage and intercourse. The conclusion based upon these facts must therefore be that, as the law of nations stood in 1861, the fitting-out, arming, or equip- ping, within the jurisdiction of a neutral state, of a vessel intended to cany on direct hostile operations against a friendly state, was a violation of Interna- tional Law. It has been seen that, during the continuance of the civil war, three war-steamers were obtained by the Confederate States, in England, by purchase and con- struction. Over the acts of those persons within its jurisdiction, who had to do with such purchase and construction, the British government had undisputed control. Its duty and responsibility in the premises should have been known to the individual members of the government ; and the ease with which the Ameri- can minister was able to obtain detailed information as to the purpose and ultimate destination of these vessels shows that no insuperable difficulties lay in the 324: OUTLINES OF INTERNATIONAL LAW, way of its obtaining similar knowledge, upon which to act in the performance of its neutral duty. Manner in which the Neutral Duty of England was Performed. In the performance of its duty as a neu- tral, however, the British government displayed not only a singular and unusual lack of energy and vigi- lance, but a more remarkable failure to discern the true point at issue. In a manner entirely in accordance with English tradition, it seems to have been taken for granted that a more or less vigorous enforcement of the existing neutrality laws would constitute a suf- ficient performance of its neutral duty, and a sufficient fulfilment of its neutral obligation. The action of the government, therefore, was not only confined to the enforcement of its neutrality law, but a peculiar con- struction was placed upon that law, by which it was deemed no violation of its provisions to construct a ship, even for an admitted warlike purpose, if no por- tion of its equipment and armament was contributed by its builders, or placed on board within British terri- torial jurisdiction. Responsibility of England in the Case. From what mistaken view of international duty such an idea was deduced it is not necessary to discuss here. Acts like those of which the United States complained were op- posed to the usages of nations, because they constituted hostile attempts against a friendly power, and origi- nated within neutral jurisdiction. A belligerent has no right, or color of right, to interfere in any manner with the internal administration of a sovereign state. He must judge of the attitude and intentions of that state by its acts, or by the acts of individuals which have originated within its territory. If an act of hos- NEUTRALITY. 335 tility originate in a neutral state, it matters not by whom it is committed, the neutral is entirely respon- sible for its effects and results, whatever they may be ; and no other course is open to a belligerent than to hold such neutral to a strict accountability for events over which he has, and may exercise, a jurisdiction in every way adequate to his responsibility. Later History of the Confederate Cruisers. Of the three cruisers whose origin has been alluded to the ca- reer may be briefly told. The Florida, on Aug. 11, 1862, completed her armament in neutral West Indian waters, and entered upon her duty of destroying mer- chant vessels. Her career was terminated in October, 1864, by her illegal capture in the port of Bahia, Brazil. The Alabama, in spite of the urgent remonstrances of the American minister, effected her departure from English waters on the 29th of July, 1862. Her arma- ment and crew were placed on board at Angra Bay, in the Azores Islands, near the end of the following month. After a most eventful career, during which she succeeded in capturing or destroying fifty-eight merchant-vessels, she was defeated and sunk in an en- gagement with the United States steamer Kearsarge, off the port of Havre, France, on June 19, 1864. The Shenandoah, a steamer formerly engaged in the China trade, attracted the attention of the Confederate agents in London by her speed and superior sailing qualities, as well as by her adaptability to the purposes which they had in view. She was, therefore, purchased, and on October 8, 1864, cleared from the Thames, osten- sibly for Bombay. Her real destination, however, was the Island of Madeira, whither a tender had preceded her, containing her armament and crew. The transfer 326 OUTLINES OF INTERNATIONAL LAW. was effected in neutral jurisdiction, as in the preceding cases, about October 21st of the same year. The evi- dence submitted in the case of this vessel satisfied the Geneva Board of Arbitration that no responsibility at- tached to the British government for her conduct up to the date of her arrival at Melbourne, Australia. The circumstances attending her conduct there should have caused her detention, but did not, and for her acts, after the date of her departure from Melbourne, the British government was held responsible. The career of this vessel is remarkable from the fact that she con- tinued to make captures, in the North Pacific, after the termination of hostilities in the civil war. Upon being notified of the peace in July, 1865, she was conveyed by her captain to Liverpool, and was there surrendered to the British government. 1 Result of their Operations. The result of the opera- tions of these vessels and their tenders was, in effect, to destroy the merchant marine of the United States. Such of its ships as escaped capture or destruction were transferred to foreign flags, to secure an immunity from capture by acquiring the neutral character. The question continued an open one between the govern- ments for a number of years, subjecting their relations to a constant strain, and at times taking such a turn as to render war between them a not unlikely occurrence. Several attempts at settlement were made, but without success, owing to the excited state of feeling at the time. The question was finally put in the way of ad- justment by the negotiation of the Treaty of Wash- ington, in 1871. 1 For Captain Waddell's letter to the Secretary of Foreign Affairs, surrendering this vessel, see Bernard, pp. 434-436. NEUTRALITY. 397 THE GENEVA ARBITRATION. 13. The most striking and successful example of the settlement of an international difference of the gravest character, by a resort to the principle of arbitration, is furnished by the adjustment of the dispute between the United States and England growing out of the Alabama claims. Unsuccessful Attempts at Settlement. It was impos- sible that a difference of such serious importance could long exist without endangering the friendly relations of the two powers, and, at different times between the years 1863 and 1869, efforts were made with a view to its adjustment. None of them, however, were success- ful. The first attempt was made, in 1863, by Mr. Adams, the United States minister to England. He submitted a proposition which was held under advise- ment, for a time, by the British cabinet, but was final- ly declined in 1865. Another effort was made in 1866, and negotiations were continued until, in January, 1868, they were broken cff, apparently without hope of renewal. In 1869 they were again renewed by Mr. Keverdy Johnson, who had succeeded Mr. Adams as the American representative in England. An agree- ment was entered into, between Mr. Johnson and the Earl of Clarendon, by which the claims were to be re- ferred to a commission selected by the interested pow- ers. This agreement was not ratified by the United States Senate, a co-ordinate branch of the treaty-mak- ing power in that state, and thus, for the third time, the efforts at adjustment were abandoned. The Treaty of Washington. In 1870 a dispute arose between the United States and Canada, as to the rights 328 OUTLINES OF INTERNATIONAL LAW. of American citizens to participate in the fisheries in certain British territorial waters of North America. As the agitation of the question seemed likely to in- troduce a new element of difficulty into the complica- tions already existing between the two governments, a proposal was submitted, through the British minister, to the government in Washington for the appoint- ment of a Joint Commission. The commission was to be composed, in equal numbers, of members selected by each government, and was to be charged with the adjustment, not only of the fishing dispute, but of all questions which might affect the relations of the United States with the British possessions in North America. To this proposition a reply was made, in behalf of the United States, that the project of the commission would not be favorably considered, unless its powers were extended to include the settlement of the differ- ences which had arisen, during the civil war, out of the acts committed by Confederate cruisers; which had given rise to the demands known as the Alabama Claims. 1 The proposition of the United States was accepted, and an agreement was entered into providing for the organization of a commission of ten members, selected in equal numbers by the governments of England and the United States. The commission was to sit in the city of "Washington, and was to address itself to the task of providing a means of adjusting all causes of difference then existing between the two countries. The commission thus provided for met in Washing- ton on March 4, 1871. Its labors terminated on May 1 Eevue de Droil International, tome iii., 1871, p. 113 NEUTRALITY. 329 8, with the completion and signature of the Treaty of Washington. That instrument provided for the ref- erence of the Alabama Claims to a tribunal of arbi- tration to be composed of five members. Of these one was to be selected by each of the contracting parties, and one each by the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil. The tribunal was to meet in Geneva, on the earliest convenient day after the nomination of its members. A case was to be submitted, by each of the contract- ing parties ; and within four months thereafter either party might, in its discretion, submit a counter case in reply to the evidence and correspondence adduced by the other in support of its claim. The tribunal, in deciding the case, was to be guided by three rules which were incorporated in the treaty, and mutually agreed to by the litigant powers. The agreement on the part of Great Britain was qualified by the declaration that "Her Majesty's government cannot assent to the foregoing rules as a statement of principles of International Law which were in force at the time when the claims mentioned arose, but that Her Majesty's government, in order to evince its de- sire of strengthening the friendly relations between the two countries, and of making satisfactory provis- ion for the future, agrees that in deciding the questions between the two countries arising out of these claims, the arbitrators should assume that Her Majesty's gov- ernment had undertaken to act upon the principles set forth in the rules." ' The three rules are, " A neutral government is bound, 1 "Treaties and Conventions of the United States," p. 416. 330 OUTLINES OF INTERNATIONAL LAW. (#.) " To use due diligence to prevent the fitting-out, arming, equipping, within its jurisdiction, of any ves- sel which it has reasonable ground to believe is in- tended to cruise or carry on war against a power with which it is at peace ; and also to use like diligence to prevent the departure from its jurisdiction of any ves- sel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." (&.) "Not to permit or suffer either belligerent to make use of its ports or waters as a base of naval op- erations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men." (c.) " To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties." Decision and Award, The decision of the tribunal was to be rendered, if possible, within three months after the arguments on both sides had been closed. It was to be in writing, prepared in duplicate, and signed by the arbitrators who assented to it. The question referred for decision, as to each vessel separately, was " whether Great Britain has, by any act of omission, failed to fulfil any of the duties set forth in the foregoing three rules, or recognized by the principles of International Law not inconsistent with such rules." ' " In case the tribunal finds that Great Britain has failed to fulfil any duty, or duties, as aforesaid, it may, 1 "Treaties and Conventions of the United States," pp. 416, 417. NEUTRALITY. 331 if it think proper, proceed to award a sum in gross, to be paid by Great Britain to the United States, for all the claims referred to it ; and in such case the gross sum so awarded shall be paid in coin by the gov- ernment of Great Britain to the government of the United States, at Washington, within twelve months after the date of the award." ' "In case the tribunal find that Great Britain has failed to fulfil any duty, or duties, as aforesaid,' and does not award a sum in gross, the high contracting parties agree that a board of assessors shall be ap- pointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failures, as to each vessel, according to the extent of such liability as determined by the arbitrators." " Meeting of the Board of Arbitration. The tribunal met at Geneva on December 15, 1871. The full pow- ers of the arbitrators were exchanged, and the board was organized by the selection of Count Sclopis, the Italian representative, as president. The cases were submitted by the agents of the respective govern- ments, and the tribunal directed that the counter cases, additional documents, correspondence, and evidence should be delivered to the secretary on or before April 15, 1872. After making some arrangements as to pro- cedure, the tribunal, on the following day, adjourned to meet on June 15, 1872. Indirect Claims. In the case submitted by the 1 "Treaties and Conventions of the United States," pp. 416, 417. 332 OUTLINES OF INTERNATIONAL LAW. United States certain claims appeared for damages due under the heads of 1st. "The losses in the transfer of the American commercial marine to the British flag." 2d. " The enhanced rates of insurance." 3d. " The prolongation of the war, and the addition of a large sum to the cost of the war and the suppres- sion of the rebellion." The consideration of these in- direct claims by the tribunal was objected to by the agent of the British government; and the tribunal decided that, according to the rules of International Law applicable to such cases, they did not constitute a good foundation for an award, and should be wholly excluded from the consideration of the tribunal in making its award. This ruling was accepted by both of the governments interested. 1 Decision of the Arbitrators. A decision was reached by the tribunal at the session of September 9, 1872. It was concurred in and signed by four of the mem- bers, the English representative offering a dissenting opinion. On September 14, after directing that a copy of the decision should be delivered to each of the agents of the two governments, the tribunal was dis- solved. Decision and Award. Before the members of the tribunal were able to apply the rules, furnished them in the treaty, to the decision of the case, they were obliged to place an interpretation upon some of the terms there used, and to define the rule of Interna- tional Law upon certain points, which were involved 1 "Foreign Relations of the United States," "Geneva Arbitra tion," vol. iv., p. 20. NEUTRALITY. 333 in the judicial determination of questions not covered by the rules themselves. It was therefore decided (1.) That due diligence "ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfil the obligations of neutrality on their part." (2.) " The effects of a violation of neutrality commit- ted by means of the construction, equipment, and ar- mament of a vessel are not done away with by any commission which the government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel ; and the ulti- mate step, by which the offence is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud be- come the means of establishing his innocence." (3.) " The principle of exterritoriality has been ad- mitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the prin- ciple of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality." l In the cases of the Alabama, of the Florida, and of the Shenandoah after her departure from Melbourne on February 18, 1865, the tribunal was of opinion that Great Britain had failed, by omission, to perform the duties prescribed in two or more of the rules of Article YL of the Treaty of Washington. 9 1 "Foreign Relations of the United States," 1872, 1873, "Geneva Award," vol. iv., pp. 49, 50. 8 The finding in the case of the Alabama was of a failure in re 334 OUTLINES OF INTERNATIONAL LAW. The sum of $15,500,000 in gold was awarded to the United States as the indemnity to be paid by Great Britain, for the satisfaction of all the claims referred to the consideration of the tribunal ; and, in accordance with the terms of Article XI. of the treaty, it was de- clared that " all the claims referred to in the treaty as submitted to the tribunal are hereby fully, perfectly, and finally settled." a Results of the Geneva Arbitration. The effect of the Geneva arbitration upon International Law has been much discussed, especially in connection with a clause in the treaty, which binds the high contracting parties " to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." 8 Neither power is believed to have made any special or positive efforts to include other states in the operations of the treaty. In so far as the rules themselves are concerned, such action seems hardly necessary. Their effect has not been to change any existing rule of International Law, for the strict ob- spect to the first and third rules; in the case of the Florida of the first, second, and third ; in the case of the Shenandoah of the second and third respectively. The Tuscaloosa, a tender of the Alabama^ and the Clarence, Tacony, and Archer, tenders of the Florida, were held to be involved in the lot of their principals. It was held in the cases of the Georgia, Sumter, Nashville, Tallahassee, and Chick- amauga that Great Britain had not failed to observe the three rules. The cases of the Sallie. Jeff Davis, Music, Boston, and V. H. Joy, were excluded from consideration for want of evidence. " Foreign Relations of the United States," 1872, 1873, "Geneva Arbitration," vol. iv., pp. 51, 53. l lbid., p. 53. 2 " Treaties and Conventions of the United States," p. 416. NEUTRALITY. 335 servance of neutral obligation and duty would require substantial compliance with their provisions, by any neutral state, in time of war. Their chief effect has been to define and make clear a principle already ex- isting, and so generally sanctioned by the usage of nations as to cause it to be regarded as a doctrine of International Law. Xot the least important of its effects, however, will be found to consist in the example afforded of two powerful states resorting to an amicable method of terminating a dispute which had aroused, in both na- tions, a feeling dangerously near to hostility ; and which threatened, upon more than one occasion, to involve them in open war. References. For the old view of neutrality the student is re- ferred to Vattel, book iii., chap, vii., 103-111 ; Azuni, " Maritime Law," vol. ii., chaps, i.-v. For the views now generally accepted, see Hall, part iv., chaps, ii.-iv. ; Boyd's "Wheaton, 405-501 ; Halleck, vol. ii., chaps, xxiv. and xxviii. ; Creasy, pp. 570-683 ; Manning, book v., chaps, i.-vi., and viii.-xii. ; Philliniore, vol. iii., pp. 225-386; "Woolsey, 163-192; Bernard, "The Neurtality of England ;" Nys, " La Guerre Maritime," chaps, i., ii., and vi. ; Glass, " Marine International Law," pp. 573-603 ; G. F. De Martens, vol. ii., 305-314, and 323-326 ; Kliiber, 279-287, and 299-316 ; Heflfter, pp. 269-286 ; Kusserow, " Les Devoirs d'un Gouvernernent Neutre," and Hautefeuille, vol. i., pp. 195-407 ; vol. ii., pp. 1-69, 289^162 ; vol. iii., pp. 214-276, and 432-449. For a discussion of the Alabama Case and the Geneva Arbitration, see Bernard, " Neu- trality ot England ;" Gushing, " Treaty of Washington ;" " The Alabama Question," by Professor Bluntschli, vol. ii., Revue de Droit International, pp. 452-485 ; " The Geneva Arbitration," vols. i.-iv. ; " Foreign Relations of the United States," 1872 ; Gessner, " Sur la Reforme du Droit Maritime de la Guerre," in vol. viii. of Revue de Droit International, and Lorirner, " The Obligations of Neutrals." CHAPTER XII. CONTRABAND OF WAR. 1. THE principle of forbidding, as a matter of state policy, the manufacture or sale of certain articles, or even the holding of them in legal possession, has been recognized by the municipal law of all states since the beginning of history. The origin of the rule of Inter- national Law on the subject of contraband of war, however, is relatively recent, and, in its present form, does not antedate the seventeenth century. 1 Origin of the Practice. The commercial cities of the Mediterranean had but little interest in asserting such a right against each other, since each of them claimed exclusive control erf what it regarded as its own field of commerce, and was not disposed to surrender any portion of it, even in time of war. Moreover, a large part of their trade with the East, especially that of Venice and Genoa, was in articles which would now be regarded as contraband of war. It is, therefore, very 1 So early as the thirteenth century it had become the usage for powerful sovereigns to forbid all trade with their enemies in time of war. Such an instance occurs in a treaty of Edward III., of Eng- land, with the Flemings, in 1370. Francis I., in 1543, forbade his allies and confederates to deliver munitions of war to his enemy. Grotius was the first writer of standard authority to discuss the sub- ject. Although the transport of certain articles is forbidden in trea- ties of an earlier date, the Treaty of the Pyrenees, in 1C59, and that of Utrecht, of 1713, seem to have been most effective in determin- ing the present rule on the subject of contraband of war. CONTRABAND OF WAR. 337 unlikely that they would have advocated, or e\en fa- vorably considered, a principle, the application of which would have seriously injured, if it did not entirely de- stroy, a most lucrative branch of their commerce. The adoption of the modern rule was thus deferred until the northern and western European powers had begun to acquire maritime importance, and to carry on hos- tile undertakings against each other at sea. So soon as interstate commerce became general it was seen that certain kinds of trade, if carried on dur- ing the existence of a war, were calculated to injure belligerents to such an extent as to make it necessary for them to cause, at least, their temporary discontinu- ance ; and to justify them, in the exercise of the right "of self-defence, in resorting to such measures of pre- caution as would neutralize their injurious effects. It was not difficult to find a remedy, when the trade com- plained of was carried on by a state in its corporate capacity, since it constituted a violation of neutrality, and was punishable as such. Where the objectionable commercial undertakings originated with individuals, however, it was less easy, to provide a remedy. On land it was soon found to be impossible to prevent contraband trade, unless the bel- ligerent himself controlled the neutral frontier, or the neutral state was willing to resort to such elaborate police measures as would effectively prevent the con- veyance of contraband articles across its boundaries. Its attempted regulation on land, therefore, was soon abandoned. At sea, however, the matter could be more easily regulated. The ships of neutrals could be searched, and, if contraband articles were found on board, a suitable penalty could be inflicted ; or their 22 338 OUTLINES OF INTERNATIONAL LAW. introduction into the enemy's country could be pre- vented, by maintaining opposite his coasts a naval force of sufficient strength to make it difficult, or impossible, for neutral ships to obtain access to his harbors. When such regulation was first undertaken, the at- tempt was made to forbid all traffic with an enemy. This claim, however, was soon abandoned, and the conveyance of contraband was regarded as a criminal act, involving the persons engaged in it, as well as their property, in the penalties imposed. In this form the rule was recognized by Grotius. The criminal feat- ure was soon abandoned, so far as it affected the per- sonal rights of those concerned, and the penalties were restricted to the contraband goods alone. 2. Power of a Belligerent over Neutral Commerce in Time of War. The law of nations permits a bel- ligerent to exercise a peculiar jurisdiction over neutral commerce in time, of war. This jurisdiction is so ex- tensive as to amount to an absolute prohibition of cer- tain kinds of trade. It is limited, in its extent and op- erations, only by the zeal and energy which belligerents display in its exercise. This jurisdiction extends (.) To the prohibition of neutral trade with bellig- erents in certain articles susceptible of military use. The articles so forbidden to be transported are called contraband of war. (>.) To the prohibition of all trade with certain ports or places, which are closed to such trade by an exer- cise of military force known as an investment, siege, or blockade. (c.) To make these prohibitions effective, a belliger- ent is given the right to stop, and search, all neutral mer- CONTRABAND OF WAR. 339 chant vessels on the high seas, in his own territorial waters, or those of his enemy, for the purpose of deter- mining the nationality of ships and goods, and of as- certaining whether they contain contraband of war. This is called the Right of Search. These rights pertain to belligerent states alone. They come into existence at the outbreak of war, and are terminated by the treaty of peace. None of them exist, or may lawfully be exercised, in time of peace ; and the enforcement of any one of them, during peace, would be regarded as a just cause of war by the state whose sovereign rights were injured by its exercise. The Rules of Contraband Affect chiefly the Acts of Individuals. The rules of International Law on the subject of contraband trade are directed chiefly against the acts of individuals. If a neutral state, in its cor- porate capacity, were to engage in contraband trade, it would be regarded as an act of hostility by the injured state, and would result in a declaration of war. An individual engaging in such trade, does so at the risk of losing the articles of merchandise which constitute his commercial venture. He does not involve his gov- ernment, however, in the breach of neutrality of which he is himself guilty. If the municipal law of his own state forbids its subjects to take part in contraband trade, he may be punished by that government for a violation of its laws. Character of Contraband Trade in Point of Legal- ity. International Law declares the acts of transport- ing contraband and breach of blockade to be unlawful, and denounces the penalty of confiscation upon the goods, and, in some cases, upon the ships engaged in such illicit trade. These rules of International Law OUTLINES OF INTERNATIONAL LAW. are enforced by the belligerent Avho suffers by their violation, and the authorized penalties are imposed by his prize courts. 3. Difficulty of the Attempt to Frame Rules for Determining what Articles are Contraband of War. It is difficult to lay down a rule the application of which shall, in every case, determine whether a par- ticular article is, or is not, contraband of war. The attempt has frequently been made, but none of the rules suggested has, as yet, received that general sanc- tion which is necessary to give it standing as a rule of International Law. " Grotius, in considering this sub- ject, makes a distinction between those things which are useful only for purposes of war, those which are not so, and those which are susceptible of indiscrimi- nate use in war and peace. The first, he agrees with all other text writers in prohibiting neutrals from car- rying to the enemy, as well as in permitting the sec- ond to be so carried ; the third class, such as money, provisions, ships' and naval stores, he sometimes pro- hibits and at others permits, according to the existing circumstances of the war." l Difficulty of Stating a Precise Rule. The question as to what is and what is not contraband cannot, as yet, be answered with precision. No complete list of articles which are to be deemed contraband under all 1 Boyd's Wheaton, pp. 558, 559, citing Grotius; " De Jure Belli ct Pac.," lib. iii., cap. i., v, 1, 2, 3. The views of Bynkershoek and Vat- tel agree in substance with those of Grotius. The former, however, shows an inclination to extend Grotius's rules in the interest of bel- ligerents, while the latter contends for a rule somewhat more favor- able to neutrals. See Vattel, bk. iii., chap, vii., 112, 113; Bynker shock, "Quest. Jur. Pub.," lib. i., cap. 10. CONTRABAND OF WAR. circumstances has been drawn up, nor does it seem likely that it ever will be. That which is contraband under certain circumstances may not be so under oth- ers. The main point, in case of an article of doubtful use, is, whether it was intended for, or would probably be applied to, military purposes. The release or con- demnation of the goods is, in every case, determined by the decision of this question. Question Determined by Prize Courts. In England and America the court before which the goods are brought will inquire into all the circumstances of the case; such as the destination of the ship, the purpose to which the goods seem intended to be ap- plied, the character of the war, and so on, and will condemn or release them upon the evidence. 1 If, how- ever, there are any treaty stipulations on the subject, or if the state before whose court the goods are brought has issued any definite list of contraband goods, the decision will, of course, be regulated accordingly. " The liability to capture" says Halleck, " can only be determined by the rules of International Law, as inter- preted and applied by the tribunals of the belligerent state, to the operations of whose cruisers the neutral merchant is exposed." " field's Rule. Mr. Field, in his proposed Interna- tional Code, holds that " private property of any per- son whomsoever, and public property of a neutral nation, are contraband of war, when consisting of arti- 1 Dana's Wheaton, note, p. 226; Calvo, vol. ii., 1114; Abdy's Kent, p. 359. 2 Boyd's Wheaton, pp. 575, 576; Halleck, chap, xxiv., 19. See, also, on page 576 of the former work, the lists of contraband as de termined by the English prize courts. 342 OUTLINES OF INTERNATIONAL LAW. cles manufactured for, and primarily used for, military purposes in time of war, and actually destined for the use of the hostile nation in war, but not otherwise." ' Opinion of the Supreme Court of the United States. The most recent authoritative opinion upon the sub- ject, and the one which more nearly expresses the ex- isting rule than any other, is that laid down by the Supreme Court of the United States in the case of the Peterhoff. The decision of the court was that "the classification of goods as contraband or not contra- band has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is, per- haps, impracticable ; but that which is best supported by American and English decisions may be said to di- vide all merchandise into three classes : (1.) Articles manufactured and primarily or ordinarily used for military purposes in time of war. (2.) Articles which may be, and* are, used for purposes of war or peace, according to circumstances. (3.) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occu- pied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contra- band only when destined to the military or naval use of a belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege." 2 To these may be added the rule that no articles of merchandise are contraband of war so long as they re- main in neutral territory, or are found on the high 1 Field, "International Code," 859. 2 The Peterhoff, Wallace, vol. v., p. 58. CONTRABAND OF WAR. 343 seas "with a bona fide neutral destination. They ac- quire the character of contraband only when they are found, without the territorial waters of a neutral state, on board a ship which is destined to a hostile port. Application of the Rules. In the application of these rules, the first and third give rise to but little difficulty. Such discussion as has been had, with re- spect to the liability of merchandise to capture as con- traband of war, has had to do chiefly with the second class, with reference to which there is a wide differ- ence of opinion. This is observable, not only in the policy of states, but in the views of text writers. Those states which, at different periods, have enjoyed great maritime power, both in a commercial and a mil- itary sense, have usually advocated an extension of the list o^ contraband; while, on the other hand, those which have never attained to any considerable degree of maritime importance have opposed such an exten- sion, and have contended for the greatest freedom of neutral trade. Of the former class England is the most conspicuous representative ; next in order follow France and the United States. Holland, when an im- portant maritime power, entertained a different view from that advocated by her when her maritime impor- tance had been largely diminished. Again, articles which are in dispute are differently regarded at different times, and under different cir- cumstances of destination, as determined by the states which are parties to a particular war. So, too, arti- cles w^hich are undeniably contraband at a particular epoch gradually lose that character ; on the other hand, articles formerly innocent, with the lapse of time and the march of improvement, acquire the character of 344 OUTLINES OF INTERNATIONAL LAW. contraband. Parts of marine steam machinery, pre- vious to 1830, would have escaped capture. Plates of iron or steel, of suitable size for use as armor, would have enjoyed a similar immunity. At present both are everywhere regarded as contraband of war. How- ever difficult it may be to prepare a list of contraband articles at any particular epoch, it is certainly much less difficult for a court to determine whether a cer- tain article of captured merchandise is, or is not, con- traband. In reaching such a determination the court takes into account the circumstances of capture, the necessities of the state to whose use it was destined, its condition, origin, and ownership. With these data the court is usually able to determine, with great accuracy, whether a particular article is, or is not, contraband of war. 1 1 The action of the court in the case of the Peterhoff may be cited as an example. A portion of the cargo of the ship consisted of stoutly-made shoes and cavalry boots. The ostensible destination of the cargo was Matamoras, a Mexican port. These articles were notoriously not worn or used, in Mexico, by any portion of the popu- lation; they were worn in the United States, and were especially needed for the equipment of the Confederate armies. Another por- tion of the cargo was composed of heavy woollen blankets, not adapt- ed to the Mexican market, and of a kind entirely different, in pat- tern and weight, from those usually worn in Mexico. On the other hand, they closely resembled those made and sold, for military use, in the United States, and were adapted to the colder climate of that country. The court, in both instances, properly inferred that the goods were destined to the military service of the Confed- eracy. In the cargo of the Springbok a large quantity of gray cloth and metal buttons were found. The cloth was a heavy woollen ma- terial, altogether uusuited to the Nassau market, or for use in the manufacture of clothing in that climate. On the other hand, it was of the same color and quality as that officially adopted for the use of the Confederate armies. Some of the buttons bore as a device CONTRABAND OF WAR. 345 Destination of Ships and Goods ; how Determined. The destination of a vessel is determined from its pa- pers. If the ultimate destination and all interme- diate ports of call are neutral, the ship is said to have a neutral destination. If the port of final destination, or any intermediate port of call, be hostile, then her destination is hostile. If the purpose of the master to visit an intermediate hostile port be contingent only, and if he has abandoned his purpose in the course of the voyage, the burden of proof is with him to estab- lish such abandonment of the hostile destination. In this case he will have to overthrow the presumption, as to destination, which is created by the ship's papers. The destination of the goods is usually, but not in- variably, determined from that of the ship. If the destination of the ship be neutral, that of the goods is neutral ; if it be hostile, that of the goods is hostile. Until the American civil war the presumption by which the destination of the goods was deduced from that of the ship was generally regarded as conclusive. During the course of that war, however, the Supreme the letter C; others the letter A; others the letter I; still others the letters C. S. N. These buttons were not usual articles of commerce in Nassau, the ostensible destination of the ship. The Confederate army regulations prescribed that such buttons should be worn by, and should designate the uniforms of, its cavalry, artillery, and in- fantry. Its navy regulations prescribed the use of buttons bearing the letters C. S. N. Goods bearing the name of the same makers, and in some cases of the same shippers, had been found and con- demned in previous cargoes of contraband. These facts created a presumption, against the articles, which the claimants did not attempt to rebut by evidence of a legitimate neutral destination. ThePe- terhoff, "Wallace, vol. v., p. 58; The Springbok, ibid., p. 1. See, also, Daira's Wheaton, p. 632, note. 346 OUTLINES OF INTERNATIONAL LAW. Court of the United States rendered several decisions, the effect of which was to extend considerably the rights of belligerents at the expense of those of neu- trals. As the new rule is likely to receive considera- ble support in future wars, it is important to under- stand its relation to the old rule of International Law upon the same subject. The rule laid down by the court was that the destination of the goods, rather than that of the ship, was to be inquired into by the court, in determining the liability to capture. If the result of such inquiry showed that the goods were destined to the military use of a belligerent, they were held lia- ble to condemnation, even though they were ostensi- bly destined to a neutral port. The application of the rule is illustrated by the cases of the Springbok and Peterhoff. C&se of the Springbok. The Springbok was a neu- tral ship, of English ownership, which sailed from London in December, 1862, having on board a cargo made up in great part of contraband of war. The destination of the vessel, as indicated by her custom- house certificate, certificate of clearance, and manifest of cargo was Nassau, N. P., a British, and therefore neutral, port. On February 3, 1863, she was captured by a public armed vessel of the United States, on the high seas, about one hundred and fifty miles east of her port of destination. She was conveyed to New York as a prize, and ship and cargo were there con- demned by the United States District Court, a tribu- nal having original jurisdiction in the case. An ap- peal was taken to the Supreme Court, where the decree was reversed as to the ship, but affirmed as to the cargo. The decision of the court with regard to the ship was, CONTRABAND OF WAR. 34.7 that when " the papers of a vessel sailing under a char- ter party are all genuine and regular, and show a voy- age between ports neutral within the meaning of In- ternational Law, and when the aspects of the case gen- erally are, as respects the vessel, otherwise fair, the vessel will not be condemned because the neutral port to which it is sailing has been constantly and notori- ously used as a port of call and transshipment by per- sons engaged in the systematic violation of blockade, and in the conveyance of contraband of war, and was meant by the owners of the cargo carried on this ship to be so used in regard to it." l The Springbok was held to come Avithin the rule. " Her papers were reg- ular, and they all showed that the voyage in w^hich she was captured was from London to Nassau, both neutral ports within the definition of neutrality fur- nished by International Law. The papers, too, were all genuine, and there was no concealment of any of them, and no spoliation. Her owners were neutral, and do not appear to have had any interest in the car- go ; and there is no sufficient proof that they had any knowledge of its alleged unlawful destination." 3 The case of the cargo was quite different. The cargo of the ship consisted of over two thousand packages. Of these the bills of lading disclosed the contents of less than one third, and concealed the contents of over two thirds, of the entire cargo. The manifest and bills of lading named no consignee, but described the cargo as deliverable to order. The real owners of the cargo were found to be certain firms in London, all of whom had been the owners of similar packages of 1 The Springbok, Wallace, vol. v., p. 1. * Ibid. 348 OUTLINES OF INTERNATIONAL LAW. merchandise which had been captured on a previous occasion, and condemned as contraband. 1 The court inferred from these facts the intention of concealing from the scrutiny of American cruisers the contraband character of a considerable part of the cargo. The motive of such concealment being "the apprehension of the claimants that the disclosure of their names, as owners, would lead to the seizure of the ship in order to the condemnation of the cargo." The concealments above mentioned were not of themselves regarded by the court as- sufficient to war- rant the condemnation of the cargo. " If the real in- tention of the owners of the cargo was that the cargo should be unloaded at Nassau, and incorporated by real sale into the common stock of that island," the cargo should have been " restored, notwithstanding the misconduct of concealment. What, then, was the real intention?" This was inferred by the court, m part from the ship's papers, and in part from the character of the cargo. The manifest and bills of lading showed that the consignment was to order. This was regard- ed by the court as a negation that any sale was made, or intended to be made, at Nassau. The final destina- tion of the cargo, therefore, was not Nassau, but some ulterior port, and must be inferred from the character of the cargo. A small part of this cargo consisted of articles which were contraband by the narrowest defi- nition of the term. A considerable part consisted of articles useful and necessary in war such as army cloth, blankets, boots and shoes and therefore con- 1 The Gertrude, " Blatchf ord's Prize Cases" (U. S. Dist. Court), . 874; The Stephen Hart, ibid., p. 387. CONTRABAND OF WAR. 349 traband within the construction of English and Amer- ican prize courts. These being contraband, the resi- due of the cargo, belonging to the same owners, was included in the decree of condemnation. 1 Case of the Peterhoff. The case of the Peterhoff, in some respects, resembles that of the Springbok. The Peterhoff was a steamer which sailed from London with proper documents and ship's papers, indicating her destination to be Matamoras, Mexico. The Rio Grande, for a portion of its course, separates the territory of the United States from that of Mexico. The city of Matamoras is situated on the lower waters of the river, about forty miles from its mouth, and di- rectly opposite the city of Brownsville, in the United States, The Peterhoff never reached her destination, but was" captured, near the Island of St. Thomas, by the United States steamer Vanderbilt, on suspicion that her destination was the blockaded coast of the states in rebellion, and that her cargo consisted in part of contraband of war. She was taken to ]S"ew York, where ship and cargo were condemned as prize. An appeal was taken to the Supreme Court by claimants interested in the vessel and a portion of the cargo. The court, in reaching a decision, found it necessary to pass upon the question of the right of a belligerent to blockade a boundary river, in order to determine whether the ship was liable for breach of blockade or for carrying contraband of war. Upon this point the ruling was, that when a naviga- ble river separates two sovereign states, neither bellig- erent, in the exercise of his right of blockade, can in- ' The Springbok, Wallace, vol. v., p. 1. 350 OUTLINES OF INTERNATIONAL LAW. terrupt commerce with the other state, if neutral, by preventing access to any ports of such neutral state as are situated upon the boundary river at any point of its course. As the ~bona fide destination of the ship, as indicated by its papers, was Matamoras, a neutral port, it was therefore decided that the ship was not, and, under the circumstances could not be, liable to condemnation for breach of blockade. As to the cargo, the decision was that the destina- tion of such part of it as was contraband of war, ac- cording to the rules already cited, 1 was not the neutral port of Matamoras, and " that these articles, at least, were destined for the use of the rebel forces then oc- cupying Brownsville and other places in the vicinity. Contraband merchandise is subject to a different rule in respect to ulterior destination from that which ap- plies*, to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended ; the former when destined to a hostile coun- try, or to the actual military or naval use of the ene- my, whether blockaded or not. The trade of neutrals with belligerents, in articles not contraband, is abso- lutely free, except interrupted by a blockade ; the con- veyance by neutrals to belligerents of contraband arti- cles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Matamoras and be- yond to the rebel region, where the communication was not interrupted by blockade, articles of a contra- band character, destined in fact to a state in rebellion, 1 Lawrence's Wheaton, pp. 772-776, note; The Commercen, Whea- ton, vol. i., p. 382; Dana's Wheaton, p. 629, note; Parsons, "Mari- time Law," pp. 93, 94. CONTRABAND OF WAR. 351 or for the use of the rebel military forces, were liable to capture though primarily destined for Matamoras." ' The rule that the ownership of a portion of the contra- band cargo rendered articles not contraband, but be- longing to the same owners, liable to condemnation, was enforced as in the case of the Springbok. 2 4. The Doctrine of Continuous Voyages. In both of these cases the doctrine of continuous voyages, orig- inated by the English prize courts at the beginning of this century, was recognized by the court in reaching a decree of condemnation. By this doctrine the ulti- mate destination of a cargo is held to determine its liability to capture. If such destination is a neutral port, and if the cargo is intended to be sold there, and taken up as a part of the general stock in trade, the cargo is not liable to condemnation. If, however, a neutral port is made a new base of operations, and the goods are intended to be finally delivered at a block- aded port ; or if they are contraband of war, and are destined to the ultimate military use of a belligerent, then the alleged neutral destination will not avail. The principle of continuous voyages is thus seen to have been extended by the Supreme Court in its appli- cation to the cases of the Springbok and Peterhoff, although the fundamental principle involved, as an- nounced by Lord Stowell in his original decision, has undergone no material change. 3 The later decision 1 Wallace, vol. v., p. 35. s The English cases of the Stert, Robinson, "Admiralty Reports," vol. iv., p. 65, and the Jonge Pieter, ibid., vol. Hi., p. 297, were cited by the court as precedents applicable to the case. 8 For a full account of the decision of Lord Stowell upon the subject of continuous voyages, see the Polly, Robinson, "Admiralty 352 OUTLINES OF INTERNATIONAL LAW. regards the goods if contraband, and destined to an enemy's use, or to a blockaded port, as still liable to capture, even Avhen they were to have been discharged at a neutral port, with a view to reshipment to the belligerent destination. 1 Difference between the Old and New Rules. The rule thus laid down by the Supreme Court of the United States is undoubtedly at variance with the provisions of International Law on the same subject, as they were accepted and understood at the outbreak of the civil war. Neither has the new rule received that general recognition which it must receive to entitle it to con- sideration as a rule of International Law. The devel- opment of steam navigation, however, has been such as greatly to facilitate the operations of blockade-run- ning and carrying of contraband. So important has this* development been, that a belligerent would now suffer great injury were he to adhere to the old rule on the subject, which received international sanction at a time when maritime commerce was carried on in sailing vessels, and before the application of steam to purposes of navigation had become an accepted fact. Some modification of the old rule is, therefore, both Reports," vol. ii., p. 369, and the William, ibid., vol. v., p. 395. See, also, Phillimore, vol. iii., p. 394; and Boyd's Wheaton, pp. 589-592. 1 In the case of the Springbok the British government was ap- plied to by the owners of the contraband cargo to demand restitu- tion of the goods from the American government, or compensation for their seizure. The case was referred to the law officers of the crown, and their opinion was that the seizure was illegal. The case was referred to a mixed commission, and the claim was rejected, but no reason was given by the commission for its decision. See Creasy, pp. 619, 620, for a full and able discussion of the subject. See, also, Field's "International Code," 859. CONTRABAND OF WAR. 353 just and necessary, in order to place a belligerent in as good a situation as that which he formerly occupied. What that modification is to be can only be deduced from experience, of which a sufficient amount has not yet been acquired to justify such a deduction, or to warrant the statement of a modified rule. This much only is clear. A powerful belligerent will not, in the future, allow himself to be injured by articles of con- traband which the enemy actually receives from ships having an ostensibly neutral destination ; nor, on the other hand, will a powerful neutral allow the property of his subjects to be seized on the high seas when those goods, although partaking of the character of contra- band, have a lona fide neutral destination. In the cases above cited the ultimate destination of the goods was so clearly hostile as to make it difficult, if not im- possible, for the British government to maintain the position that the goods of its subjects had been seized in the prosecution of an entirely innocent voyage, and were so entitled to the protection which that govern- ment invariably accords to its subjects when their rights have been wrongfully invaded by a foreign state. 5. Penalty for Contraband Trade. The conveyance of contraband of war is an offence against the law pf nations. Over this offence the prize courts of a bel- ligerent are given jurisdiction, and, in the decision of prize cases, these courts apply the rules, and impose the penalties, which are sanctioned by International Law. The invariable penalty imposed for the carriage of contraband is that of forfeiture. In ordinary cases this penalty is applied to the contraband goods alone, 23 354: OUTLINES OF INTERNATIONAL LAW. and to the freight due upon them to the neutral carrier. The question as to whether it is to be extended to oth- er parts of the cargo, or to the ship, is determined by the knowledge and intention of their owners, as pre- sumed from the circumstances of the case. The an- cient penalty for engaging in contraband trade involved the forfeiture of the ship and the non-contraband cargo. This rule has been relaxed, in modern times, in cases where such contraband articles make up a minor por- tion of the cargo, thus creating a presumption of inno- cence in favor of the carrier. In other cases the old presumption remains, and the burden of proof lies upon the owner of the ship to establish his innocence. Such presumption exists, as to the ship (#.) When the owner of the ship owns any part of the contraband cargo. If a part owner of the vessel be shown to have an interest in the contraband cargo his share only is forfeited. 1 (b.) "When the greater part of the cargo is contra- band. In this case the presumption is that the owner of the ship knew of the use to which his property was put, and consented to such illegal use. a (c.) When deceit is attempted by the use of false papers, or when a false destination is claimed. 3 (<#.) When contraband is carried in violation of treaty stipulation. 4 The innocent cargo is exempt from forfeiture, unless its ownership is t-he same as that of the whole or a part of the contraband. Duration of Penalty. The offence of carrying contraband begins so soon as the ship passes into the Boyd's Wheaton, p. 584. 2 Ibid. 3 Ibid. CONTRABAND OF WAR. 355 high seas from the territorial waters of the neutral state. It is complete, and the liability to penalty no longer exists, when the articles have been delivered at their hostile destination. A ship cannot be captured on its return voyage, since there is no offence against International Law in carrying a cargo of any charac- ter from a belligerent to a neutral destination. 1 Release of Neutral Ship upon the Surrender of Contraband Cargo. In a few instances neutral ships have been released, and allowed to proceed to their destination, on condition that the contraband articles be surrendered to the captor. Although this practice has been recognized in a limited number of treaties, it is entirely opposed to the rule of law upon the subject, and has never received, nor is it likely to receive, gen- eral sanction. The surrendered articles must be car- ried before a prize court in order to secure a decree of condemnation, upon which alone a valid title can be based. The court, in the absence of the ship's papers, frequently finds itself unable to determine, from lack of evidence, whether the articles are, or are not, contraband of war ; and, in the absence of the owner, the master of the ship has no legal power to surrender any portion of his cargo, except in accordance with the la\vs of war. 1 It was held by Sir William Scott, in at least two cases, that the duration of the penalty was prolonged to the end of the return voy- age when false papers had been used to evade seizure on the outward voyage. This view is properly questioned by Wheaton, on the ground that there must be a delictum at the moment of seizure. To subject the property to confiscation, while the offence no longer continues, would be to extend it indefinitely, not only to the return voyage, but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the contraband arti- cles. Boyd's Wheaton, pp. 584, 585. 356 OUTLINES OF INTERNATIONAL LAW. 6. Neutral Conveyance of Enemy's Troops and De- spatches. It has been seen that the conveyance of contraband of war is an offence against the law of na- tions. Over this oifence belligerents are given juris- diction, and the penalties sanctioned are imposed by the prize courts of the belligerent parties to the war. A neutral individual who carries contraband to either belligerent assists that belligerent to a greater or less extent, depending upon the character and quantity of the goods transported. Troops and despatches are, therefore, the most noxious form of contraband of war, because, in point of directness and importance, the service rendered by the conveyance of either is much greater than that afforded by the conveyance of ordinary contraband. The assistance rendered to an enemy by a single cargo of munitions of war, though direct and material, is, at best, limited. The mischief that may result from the carriage of a single despatch, or general officer, may have a decisive effect upon the issue of a war. The penalty for engaging in contra- band trade usually extends to a forfeiture of the con- traband articles. The question as to the ship and non-contraband cargo is made to depend on the guilty knowledge of their owners. If they are forfeited it is because a presumption of such knowledge is created by the fact of ownership. "When troops or despatches are carried to a hostile destination the presumption of guilt, created by such carriage, is so strong as to be re- garded as conclusive; and the ship is invariably con- demned as the instrument with which the offence against International Law has been committed. Definition of Troops and Despatches in this Connec- tion. The term troops includes not only military per- CONTRABAND OF WAR. 357 sons, but all individuals having an official character in the service of a belligerent, whose assistance is mate- rial in the prosecution of the war, or whose detention is calculated to impair his military efficiency. Despatches are official communications between offi- cial persons, in the military or civil service of a state, upon matters connected with the public business. All other communications, of whatever character, are un- official, and therefore not subject to classification as despatches. The Destination Important. In the conveyance of troops and despatches the destination of the vessel is of importance as creating a presumption of guilt or in- nocence. If the destination is hostile, the guilt of the carrier is presumed ; if such destination be neutral, the contrary is the case, and the burden of proof lies on the captor to" establish guilty knowledge. If the ports of origin and destination are both hostile, an extreme case of guilt exists ; if such ports are both neutral, it is dif- ficult to see how guilty knowledge can be presumed on the part of the neutral carrier. As in every other case of maritime capture, questions as to the character of particular despatches, and the consequent liability of the carrier, are determined by the proper prize courts. Cases of the Friendship and Greta. Several con- demnations of vessels for carrying troops were made by the English prize courts during the period between 1803 and 1815. A leading case was that of the Friend- ship, a vessel hired to bring to France eighty-four ship- wrecked officers and sailors. It was confiscated because it appeared in the evidence that it was hired as a trans- port, was not permitted to take cargo, and was being used, as a transport, to convey these persons, as a part 358 OUTLINES OF INTERNATIONAL LAW. of the French army, to a belligerent destination. In another case a vessel sailed from Rotterdam to Lisbon, where it was ostensibly chartered, by a Portuguese sub- ject, to carry cargoes or passengers to Macao ; no cargo was shipped, but, after some time spent in fitting it for passengers with unusual care, three Dutch officers of rank embarked in it, not for Macao, but for Batavia. Lord Stowell, on the facts in the case, inferred that a contract had been made with the Dutch government before the vessel left Rotterdam, and condemned it. 1 The Greta was a neutral vessel, employed in carrying certain shipwrecked Russian soldiers from a port of Japan to a destination in Asiatic Russia. She was captured by an English cruiser, and condemned. Had she been captured in the act of conveying them from the place of the shipwreck, to any destination, her act, being one of humanity, would have been innocent. In the particular voyage upon which she was engaged, however, she was acting in the capacity of a transport. Presumption in the Case of Hostile Despatches. In the case of hostile despatches, the mere presence of such documents on board suffices to create a presump- tion of guilt on the part of the neutral carrier. So severely is this rule applied, that a neutral may not even plead compulsion as an excuse, it being held in such a case that his remedy, in the event of being compelled to render such service to a belligerent, is through his own government in the diplomatic way. Despatches of a Belligerent to its Ministers and Con- suls in Neutral States. The despatches of a public 1 Hall, p. 594; The Friendship, Rohinson, "Admiralty Reports," vol. vi., p. 432; The Orozernbo, ibid., p. 433. CONTRABAND OF WAR. 359 minister or consul, representing a belligerent in a neu- tral state, are an exception to this rule. " They are despatches from persons who are, in a peculiar manner, the favorite object of the protection of the law of na- tions, residing in a neutral country for the purpose of preserving the relations of amity between that state and their own government. On this ground a very material distinction arises with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communi- cation between them can partake, in any degree, of the nature of hostility against you." l Conveyance of Mails in the Ordinary Course of Business. The question of conveying hostile despatch- es must not be confused with the carriage of mails by a neutral, in accordance with contracts or agreements, and in the way of ordinary business. Such contracts not only have the sanction of municipal law, but are not infrequently made the subjects of treaty stipula- tion. It is not easy to see how the master of a vessel can acquire any duties or responsibilities in connection with them, save for their speedy and safe deli very. A neutral master who aids a belligerent by carrying his despatches, with full knowledge of their contents, or under circumstances which create a presumption of such knowledge on his part, is justly held to the fullest responsibility for his act. The conveyance of mails, however, in the usual course of business, can give rise to no such presumption. The packages are delivered 1 The Caroline, Kobinson, "Admiralty Reports," vol. vi., p. 461 cited by Wheat on, p. 581. 360 OUTLINES OF INTERNATIONAL LAW. to him either locked or sealed. He has, and can have, no knowledge of their contents, much less of the char- acter of the letters enclosed in them. Responsibility for them on the part of the carrier, therefore, cannot exist,' for no knowledge or intention can be presumed. The modern tendency is to facilitate mail communica- tion in every way possible, to remove every obstacle to their prompt and safe delivery, and to guarantee, beyond question, the sacredness of private correspond- ence. 1 Case of the Trent. The Trent was one of a line of mail steamers employed in general mail and trans- portation service between Havana and London. On November Y, 1861, she sailed from Havana, having on board, among other passengers, four persons, Messrs. Mason and Slidell, and their secretaries, who were en route to Europe, where they were to be employed as diplomatic agents of the Confederate States. On No- vember 8 the Trent was stopped on the high seas by the San Jacinto, a public armed vessel of the United States, whose commander, Captain Wilkes, sent on board a search party composed of an officer and a de- tachment of marines. The two envoys, with their secretaries, were seized by the search party, taken on board the San Jacinto, and conveyed to New York. The Trent was then released and alloAved to proceed on her way. So soon as the facts were brought to the attention of the British government, a demand was made upon 1 The rule of International Law, however, still authorizes the ex- amination of mails found on board vessels which have been regu- larly captured ; Field, "International Code," 862 ; Lushington, "Naval Prize Law," introduction, p. xiL CONTRABAND OF WAR. the United States for the restoration of the arrested persons. Their diplomatic character was not drawn in question, their surrender being demanded on the ground that they had been forcibly taken from a neu- tral vessel on the high seas, and in the prosecution of a voyage from one neutral port to another. They were surrendered by the United States upon the ground of the irregularity of their seizure. Conclusions. The case of the Trent illustrates cer- tain principles of the law of maritime capture. (.) The Trent, being a neutral vessel, was liable to search upon the high seas, by any properly documented armed vessel in the service of a belligerent power. (J.) If the commander of the searching vessel had found enemy despatches on board, or had reason to believe that such despatches were being carried, it was his duty" to seize the vessel and send her to a port of the United States, with a view to a judicial determina- tion of the question involved. (c.) In the exercise of his belligerent right it was his duty to capture the vessel ; or release her, after having executed the right of search. No intermediate course was possible. His action, therefore, in seizing certain persons, under any pretext, was without warrant of law. (Y7.) The destination of the Trent w T as neutral, a fact which should have created a strong presumption of innocence. The fact that her port of origin was also neutral should have made the presumption conclusive as to innocence. 1 1 For able discussions of this case, see Dana's Wheaton, p. 648, note; Bernard, "Neutrality of Great Britain," pp. 157, 225; Nys, "La Guerre Maritime," p. 46. The case of Henry Laurens is, in many respects, the same as that of the Trent. Mr. Laurens was 362 OUTLINES OF INTERNATIONAL LAW. 7. Occasional Contraband. During the disturbed period intervening between the outbreak of the French Revolution in 1789, and the Treaty of Yienna in 1815, the old usages of International Law were subjected to a severe and constant strain. This was due, in part, to the frequency and magnitude of the wars that were carried on, in which, at times, nearly all of the Euro- pean states were participants; and, in part, to the great disparity that existed in the relative naval and military power of the principal belligerents. During the greater part of this period the military supremacy of France was successfully maintained against every effort to overthrow it by operations on land ; on the other hand, the supremacy of England at sea was so firmly established as to secure even more general rec- ognition. As these powers were generally opposed to each other, it is not remarkable that they should have attempted to interpret the rules of w r ar, each in a sense favorable to its own interests; and, as the one was strong where the other was weak, neither was able to sent, in 1780, upon a mission to Holland, with the authority of Con- gress to secure the recognition of the independence of the colonies, and to obtain a loan of money. He left Charleston in 1780, and reached Martinique, in the West Indies, in safety. From there he embarked in a Dutch packet, the Mercury, for Holland. He was thus on board a neutral vessel sailing between neutral ports. "When three days out the Mercury was overhauled by the British ship Vestal. Mr. Laurens and his secretary were forcibly removed, their papers were seized, and they were conveyed as prisoners to St. Johns, Newfoundland, where they were committed, under a charge of high-treason, to the Tower of London. After the surrender at Yorktown their status was changed to that of prisoners of war. and Mr. Laurens was eventually exchanged for Lord Cornwallis. Sparks, "Diplomatic Correspondence," vol. ii., p. 461; Upton, "Law of Na- tions Affecting Commerce during War," pp. 360, 361. CONTRABAND OF WAR. interpose an effectual check upon the pretensions of the other. The result was that the rules of capture, on land and sea, underwent a considerable modification in the interest of belligerents, and to the prejudice of the rights of neutrals, as those rights were then under- stood. This influence upon the law of maritime capt- ure was the more powerful from the fact that the northern states of Europe, and, to a certain extent, the United States as well, entered into general commerce largely as producers of raw materials, which were con- sumed by the principal belligerents, and so were obliged to find a market in belligerent territory. Thus, while these states were generally neutral, they were not strong enough at sea, even when acting in concert, to assert effectively their views of neutrality, or even to successfully maintain their neutral rights. Under these circumstances, not only was neutral commerce likely to suffer from any extension of the definition of contraband, but the commercial prosper- ity of neutral states was made to depend, in no small degree, upon that definition being closely restricted in its application to neutral property. Such an extension was effected by the application of the doctrine of occa- sional contraband, by the English prize courts, to car- goes of neutral merchandise. According to this rule articles were condemned which had previously either been exempt from seizure, or, if regarded as contra- band, had acquired that character only in exceptional cases, where the circumstances pointed clearly to an undoubtedly hostile destination. The articles so con- demned were those usually classified as naval stores and provisions ; and neutral states resisted the applica- tion of the new rule, partly because of the extreme 364: OUTLINES OF INTERNATIONAL LAW. hardship of the case, and partly because it was not, and had never been, generally recognized as a rule of International Law. The English prize courts admitted the force of the objection, and the irregularity of the practice, by a somewhat less rigorous application of the new rule, and certain mitigating circumstances were recognized as creating presumptions in favor of innocence. In their application of the modified rule it was held that if the goods were produce of a neutral state, and were shipped, as raw materials, to strictly commercial ports, these facts were allowed to weigh against condemna- tion, and in favor of restoration. The Rule of Pre-emption. At a later period the orig- inal doctrine was still further modified by the adoption of the rule of pre-emption, by which the prize courts, in some cases, decreed the purchase of the cargo at its value at the port of origin, with a fair mercantile profit, usually ten per cent., instead of condemning it as contraband of war. The rule, as modified, continued to be enforced until the close of the period of Napo- leonic wars. Their justice was not discussed at the Congress of Vienna, and the Treaty of Vienna con- tained no provisions upon the subject of maritime capture, or contraband of war. They never received such general sanction as to entitle them to be accepted as rules of International Law. On the other hand, they were objected to from the first, and so seriously as to lead to the formation of alliances to resist their application. They are no longer seriously maintained as rules of international obligation ; and it may safely be said that no modern state would permit the proper- ty of its subjects to be confiscated by the operation of CONTRABAND OF WAR. 355 rules the justice of which it did not recognize, or by the exercise of rights which were not sanctioned by International Law. References. For further information upon this subject the stu- dent is referred to Vattel, book iii., chap, vii., 112, 113; Azuni, vol. ii., chap, ii., pp. 144-157 ; Hall, part iv., chaps, v., vi. ; Wheaton, Boyd's edition, 476-508 ; Halleck, chap. xxvi. ; Manning, book v. s chaps, vii., viii. ; Phillimore, vol. iii., pp. 387-472; Wildman, vol. ii., pp. 210-245 ; Dahlgren, pp. 65-100 ; Woolsey, 193-199 ; Nys, "La Guerre Maritime," chap, iii.; Glass, "Marine Interna- tional Law," pp. 464-508 ; G. F. De Martens, vol. ii., 314-319 ; Wheaton, "History of the Law of Nations," pp. 115, 134, and 313- 401 ; Kliibcr, 288-292 ; Heffter, pp. 296, 304 ; and Hautefeuille, vol. ii., pp. 69-189. See also the notes to the article "Contra- band," in Dana's and Lawrence's editions of Wheaton. CHAPTEE XIII. BLOCKADE. 1. THE most effective restraint which, the law of na- tions permits a belligerent to impose upon neutral commerce, is that involved in the exercise of the right of blockade. The rules of maritime capture permit him to seize upon the high seas certain contraband ar- ticles, which are destined to the enemy's use, or are calculated to aid that enemy in his military operations. But non-contraband articles are exempt from seizure, even though they have a belligerent destination, and the ship incurs no liability whatever. By the estab- lishment of a blockade, however, he may not only pre- vent the introduction of contraband articles, but may absolutely prohibit access to his enemy's coast, and so, for the time, interrupt all commercial intercourse with the outside world. Definition of a Blockade. The interruption or sus- pension of neutral commerce which results from the forcible closing of a belligerent's ports or harbors is called a blockade. What Places may be Blockaded. A belligerent, in the exercise of this right, may choose any port or har- bor of his enemy, any portion of his coast line, or any entrance to a river, gulf, or bay, situated entirely with- in the territorial limits of a hostile state. He may not, however, by the establishment of a blockade, deny ac- cess to a river, or other navigable water boundary, be- BLOCKADE. 367 tween the territory of his enemy and that of a neutral. He may prevent access to the blockaded coast by means of ships of war or by batteries on land, or, if the cir- cumstances be favorable, both measures may be resort- ed to: He may, by an investment, blockade a fortified place on land ; as an incident of siege operations, or with a view to its reduction by cutting off its supplies of food or water. The right of a belligerent to block- ade an enemy's port arises from his right to besiege it. The right is the same in both cases ; the two opera- tions differ in purpose only ; in the one case the reduc- tion of the place is the object aimed at ; in the other the interruption of commercial intercourse. What is a Valid Blockade f At one time consider- able doubt existed as to the manner in which an ene- my's ports should be closed, in order to constitute a blockade" which should be valid at International Law. This was set at rest by the fourth article of the Decla- ration of Paris, which provides that " a blockade, to be binding, must be effective." To this declaration nearly all the civilized states of the world were signatory par- ties, and, as the United States has always maintained the principle announced in the declaration, that rule may now be accepted as the existing rule of Interna- tional Law upon the subject. How Established and Notified. As an attempt to enter a blockaded port is a flagrant violation of Inter- national Law, involving both ship and cargo in the se- verest penalties, it is important that official informa- tion of its existence should be conveyed to neutrals, in order that they may know when intercourse with the place becomes illegal, and their liability to capture be- gins. This is important because none but effective 368 OUTLINES OF INTERNATIONAL LAW. blockades are recognized as lawful, and, until a de facto blockade is established, neutrals are under no obliga- tion to relinquish their commercial intercourse with an enemy's port. In other words, a neutral vessel incurs no penalty by entering a port which is not actually blockaded by the ships or batteries of a belligerent. This notification is given ' (a.) By proclamation, announcing the date upon which a blockade will be established at a particular port. If a force, adequate to the maintenance of the blockade, be not stationed opposite the blockaded port on the date mentioned in the proclamation, a neutral vessel incurs no penalty by entering or leaving the port. This is the practice of England and the United States. (&.) By Notification, or Endorsement. This is, in substance, a warning given to neutral ships which are about to enter a blockaded port. The notification is given by ships of the blockading squadron, and is, or should be, endorsed on the ship's papers of the vessel notified, or warned away. An attempt to enter after such notification constitutes a breach of blockade, and renders the vessel liable to seizure and condemnation. (c.) By Proclamation and Notification. This is a combination of the preceding methods. A proclama- tion is first issued, fixing the date upon which the block- ade will be established. A neutral vessel approaching the port after that date is warned off by the blockad- ing squadron, and is only regarded as liable to capture if, after such warning, an attempt be made to enter. This rule is advocated by France, and was outlined by 1 Dahlgren, "International Law," pp. 26, 61. BLOCKADE. 359 the President of the United States, in his proclamation of April 19, 1861. The prize courts of the United States have ruled that the second notification is not legally necessary. It is thus seen that a mere notification, by proclama- tion or otherwise, not accompanied by the presence of a squadron, or by the establishment of batteries at the blockaded port, does not constitute a valid blockade at International Law. On the other hand, if a de facto blockade be established by a belligerent at an enemy's port, it must be respected by neutrals as having the sanction of International Law. Neutral vessels at- tempting to enter, or desiring, in good faith, to ascer- tain whether such a blockade exists, are entitled to a notification or warning. An attempt to enter by night, or by the use of force or deception ; or a refusal to stop, or to observe the signals and warning guns of the blockading squadron, renders the vessel liable to capture ; the presumption being that a breach of block- ade is intended. By far the greater number of at- tempts to break blockade are made in this way. 1 The presence of a blockading squadron makes either ingress or egress unlawful. Vessels in port at the date when the blockade begins are permitted to leave, with whatever cargo they may have on board at that time. In strictness, they may not complete their lading, after the blockade has been formally established, and they have been held liable to capture for so doing. As the object of a simple blockade is the interruption of com- mercial intercourse only, the public armed vessels of neutral powers are usually permitted to enter and leave 1 Dahlgren, p. 51 24 370 OUTLINES OF INTERNATIONAL LAW. a blockaded port. Their visit is for a public purpose ; they do not carry in or bring out merchandise, and so cannot interfere with the purpose for which the block- ade was established. Moreover, a refusal to permit them to enter may inflict unnecessary hardship upon a neutral government, or its subjects, without, in any way, contributing to the purpose for which the war was undertaken. 1 2. Penalty for Breach of Blockade. The penalty for breach of blockade consists in the forfeiture of the ship and cargo. As the offence consists in carrying on commercial intercourse with a blockaded port, the for- feiture includes everything Avhich is engaged in the illegal venture. "If their owners are different, the vessel may be condemned irrespectively of the latter, which is not confiscated when the person to whom it belongs is ignorant at the time of shipment that the port of destination is blockaded, or if the master of the vessel deviates to a blockaded harbor. If, how- ever, such deviation takes place to a port the blockade of which was known before the ship sailed, the act is supposed to be in the service of the cargo, and the complicity of the owner is assumed." a Cases of Innocent Entrance to Blockaded Ports. Hall mentions a few instances in which merchant ves- sels may pass into, or out of, a blockaded port without breach of blockade. (a.) When a maritime blockade does not form part : Hall, " International Law," p. 627; the Adonis, Robertson, "Ad- miralty Reports," vol. v., p. 258; the Mariana Flora, Wheaton, vol. vii., p. 59; the Alexander, Robertson, "Admiralty Reports," vol. iv., p. 93. 8 Dahlgren, pp. 54-61; Hall, p. 628. BLOCKADE. 371 of a combined operation by sea and land, internal means of transport by canals, which enable a ship to gain the open sea at a point which is not blockaded, may be legitimately used. The blockade is limited in its effect by its own physical imperfection. Thus, dur- ing a blockade of Holland, a vessel and cargo sent to Ernbden, which was in neutral territory, and issuing from that port, was not condemned. 1 (J.) If a vessel is driven into a blockaded port by such distress of weather, or want of provisions, or wa- ter, as to render entrance an unavoidable necessity, she may issue again, provided her cargo remains intact. 3 And a ship which has been allowed by a blockading force to enter, within its sight, is justified in assuming a like permission to come out ; but the privilege is not extended to cargo taken on board in the blockaded port. 3 Duration of the Penalty. The penalty begins when a vessel clears from a neutral port with a hostile desti- nation against which a blockade has been regularly established, and of the existence of which the neutral has, or is presumed to have, sufficient knowledge. An official proclamation of a blockade, made by a bellig- erent and communicated to neutral powers, would con- stitute such a presumption of knowledge. If, on the other hand, the blockade existed without proclama- tion, the presumption would be in favor of the neutral vessel, and it would be entitled to a warning in ap- proaching the blockaded port. 4 1 The Stert, Robertson, "Admiralty Reports," vol. iv., p. 65. 2 The Hurtige, Hane, ibid., vol. iii., p. 326. 3 Ibid., vol. iii., p. 160; Hall, "International Law," p. 628. 4 Dahlgren, pp. 43-54. 372 OUTLINES OF INTERNATIONAL LAW. The former rule was that, if the distance between the ports of origin and destination was so great as to require a considerable time in the prosecution of the voyage, a neutral was entitled to the presumption that the blockade had been raised during the continuance of his voyage, and so was entitled to a warning if the blockade existed at the time of his arrival at the port of destination. The introduction of steam and the tel- egraph, however, have made it practically impossible for such a state of affairs to exist at the present time. Indeed, as blockade running is now carried on in swift steamers, specially constructed for the purpose, no de- fence is usually attempted in the case of a vessel capt- ured in the act. Breach of Blockade by Egress. When the offence is one of egress the penalty continues until the vessel reaches the territorial waters of a neutral state. The liability to capture also ceases when the blockade is raised during the return voyage, since the offence ex- ists only so long as the blockade exists. 1 3. Termination of Blockade. A blockade ceases when it is discontinued by the belligerent who estab- lishes it, or is raised by an exercise of force on the part of the belligerent against whom it is declared. In the latter case the right of intercourse with the port is revived in favor of neutrals, and continues to exist until the blockade is formally and effectively re-estab- lished. If the vessels of a blockading squadron are dis- persed by a storm, the binding character of the block- ade undergoes no change. The vessels of the squad- 1 Dahlgren, p. 54. BLOCKADE. 373 ron return to their stations, the blockade is resumed without notice, and neutral vessels approach at their peril. 4. Pacific Blockade. The right to establish what is called a pacific blockade has been asserted, on several occasions, since the beginning of this century. It has never been regarded as a war measure ; nor does it re- semble, except in name, the belligerent right of block- ade which is sanctioned by International Law. Pacific blockades have always been made the subject of protest by neutrals, as unduly interfering with neutral trade. That such an operation is not a war measure, is shown by the action of prize courts in " refusing to condemn as prize because war did not exist." ! It must, there- fore, be regarded as a measure falling short of war, and must be justified, in any particular case, by the injury suffered by the state which resorts to it as a measure of obtaining redress. The first instance of such a blockade was that declared by England, Eussia, and France against the Greek ports of Turkey, in 1827. Others were declared by England and France against the Argentine Kepublic, in 1838, and by France against Mexico, in 1837. The former of these was maintained for ten years, the latter for less than two, terminating with the capture of the Castle of San Juan de Ulloa, in 1838. References. For a discussion of this subject, see Hall, chap, viii. ; Boyd's Wheaton, 509-523 ; Halleck, vol. ii., chap. xxv. ; Manning, bk. v., chap. ix. ; Wildman, vol. ii., pp. 178-210; Dahl- gren, pp. 25-65 and 129-142; Woolsey, 202-207; Nys, "La Guerre Maritime," chap. iv. ; Glass, "Marine International Law," 1 Dahlgren, "International Law," p. 27. 374 OUTLINES OF INTERNATIONAL LAW. pp. 423-462 ; G. F. De Martens, vol. ii., 320 ; Kliiber, 297, 298 ; Heffter, pp. 289-294 ; Hautefeuille, " Droits des Nations Neutres," vol. ii., pp. 189-272 ; Ortolan, " Diplomatie de la Her," and Whea- ton's " History," etc., pp. 137-144. See, also, the valuable notes on this subject, under the article "Blockade," in Dana's and Law- rence's editions of Wheaton. CHAPTEE XIY. THE RIGHT OF SEARCH. 1. THE belligerent rights which have already been discussed of capturing enemy property at sea, of seizing contraband of war, and of blockading the coasts and harbors of an enemy could none of them be made effective were not belligerents also accorded the right to stop and search all neutral merchant ves- sels on the high seas, for the purpose of ascertaining their nationality and destination, the character and ownership of their cargoes, and to effect their capture, should the result of such examination show a liability to capture to exist. 2. Definition of the Right ; when and where Exer- cised. The right to stop and examine neutral vessels on the high seas is called the belligerent right of search. It comes into existence at the outbreak of war, and is terminated by the treaty of peace. Neutral merchant vessels, of whatsoever character, are at all times sub- ject to its exercise, and must submit to search when required to do so by a properly documented armed vessel of either belligerent. If they refuse, or resist, they are subject to seizure and condemnation. If the right be exercised by a belligerent in a manner not warranted by the law of nations, or in violation of the terms of a treaty, the remedy must be sought through the neutral government under whose flag the ship sails. 376 OUTLINES OF INTERNATIONAL LAW. As to place, the right of search may be exercised wher- ever a capture may lawfully be made, i. e., on the high seas, or within the territorial waters of either belliger- ent, but never in neutral waters. Manner in which the Right is Exercised. The man- ner in which the right of search is to be exercised is determined by the usage of nations, except in those cases in which it has been made the subject of treaty stipulation. Many such treaties are in existence, and they specify, in considerable detail, the manner in which the search shall be conducted by war ships car- rying the flags of the signatory powers. The duty of submitting is only incumbent upon neutral merchant vessels. Public armed vessels are not subject to visita- tion, either in time of peace or war, and the merchant vessels of a belligerent are justified in resorting to any measures, either of flight, resistance, or deception, which are calculated to enable them to escape search and inevitable capture. The right may be exercised by the regularly commissioned ships of war of a bel- ligerent, or by duly authorized privateers in the service of those states which still retain the right to use that species of naval force in time of war. Under ordinary circumstances, a man-of-war, in ex- ecuting the right of search, hoists its national color, and fires an unshotted gun, as a signal to heave to. This is called the coup cP assurance, or affirming gun ; and it is the duty of the neutral ship, on receiving this signal, to heave to at once, and hoist her proper na- tional flag. Should the signal not be obeyed, and should the failure to obey indicate an intention to re- sist search, the belligerent cruiser is justified in resort- ing to such measures of force as will compel obedience THE EIGHT OF SEARCH. 377 to its summons. An attempt at flight, unaccompanied by resistance, has been held not to involve the ship making it in the penalty for resisting search. The distance at -which the searching vessel shall re- main is determined by the judgment of her command- ing officer, based upon the circumstances of wind and tide, upon the character of the vessel to be searched, and the necessity of remaining within easy support- ing distance of the boat's crew by whom the search is carried on. The distance at which a man-of-war shall remain, when not regulated by treaty, is now a matter of br.t little importance. It was not so, however, in former times, when the right of search was executed by privateers, whose methods of search and capture were not above suspicion, and when piracy was a crime of much more frequent occurrence than at present. 1 Duty of Boarding Party. An officer is sent on board to conduct the search. He is accompanied by a boat's crew, and by one or two persons to assist him in the performance of his duty. The purpose of the search may be (a.) To ascertain from the ship's papers the nation- ality and destination of the vessel. (.) To ascertain from the same source the character and destination of the cargo. (5. Contracts and agreements with individuals, 166. Treaty-making power, 106. Conditions essential u> the validi- ty of treaties, 167. (a.) Power of the contracting parties, 167. (J.) Consent of the contracting parties, 167. (c.) Possibility of execution, 168. Binding force of treaties, 169. Mannerof negotiating treaties, 169. Language used, 170. Form and signature, 171. Ratification of treaties, 172. Classification of, according to their nature, 173. Transitory and permanent, 174. Classification of, according to their objects, 174. Cartels and capitulations, 174. Treaties of alliance, 175. Treaties of guarantee, 176. Reciprocity treaties, 178. Treaties of peace, 257. Termination of treaties, 179. Rules for the interpretation of treaties, 180. Terms used in treaties, 183. Troops, neutral conveyance of enemy's, 356. Truce, 253. Usages of war, 208. (/See Appendices A, C, D, E.) Virginius, case of the, 388. Visitation, right of (see Right of Search), 379. War, 198. The right of redress, 198. Definition and purpose, 198. Rightfulness of war, 199. Classification of, 199. The belligerent parties, 200. Right of declaring war, in whom vested, 201. Causes of war, 201. Responsibility for a resort to war, 202. Moral considerations involved, 202. Declaration of war, and its effects, 203. Ancient and modern rule, '203. Notification of, to whom given, 204. Effect of, upon treaties, 204. Effects of a state of war, 205. Upon subjects of an enemy in belligerent territory, 200. Upon property of enemy sub- jects in belligerent territory, 207. Laws of war, 208. Their character and tendency, 208. Subjects discussed in, 210. Amount and kind of force that may be used, 210. Legal effects of a state of war upon the subjects of the bel- ligerent states, 210. Who may lawfully carry on war, 211. Armed forces of a state, 211. Partisans, 211. Levees en masse, 212. Guerillas, 214. Forces that may not be used in war, 214. Wars with savages, 215. Forces employed at sea, 215. Naval establishments, regular and volunteer. 216. Privateers, 216. Letters of marque, 216. Effect of modern inventions, and of improved methods of attack and defence, 218. Methods of carrying on war, 218. Rule of good faith; use of deceit, 219. Attack of places, 219. Duty of the commanding officer in the matter of surrender, 221. Use of the enemy's uniform and flag, 222. Rule as to quarter, 222. Treatment of individuals of the enemy, 222. Forbidden practices, 223. Instruments of war, 223. INDEX. 469 What instruments arc furbid- den, 224. Torpedoes, mines, etc., 225. The usages of war at sea, 226. The public and private property of the enemy, 226. Treatment of property on land, 226. (a.) The public property of the enemy, 226. (6.) The private property of enemy subjects, 227. (c.) Requisitions, 228. (d.) Contributions of war, 230. (e.) Captured property on land ; booty, 230. Treatment of non-combatants in the theatre of war, 232. Prisoners of war, 233. Who may be made prisoners of war, 234. Treatment of, 234. Character of their confinement, 235. Status of prisoners of war, how terminated, 235. (a.) Exchange of prisoners, 235. (6.) Paroles, 236. By whom given, 236. Conditions of parole, 237. Breach of parole, 237. Intercourse between belligerents, 237. Flags of truce, 238. Rules as to the use of flags, 238. Cartels, 239. Capitulations, 239. Safe-conducts, 239. Safeguards, 239. Licenses to trade, 240. Offences against the laws of war, 241. (a.) Being a spy, 241. (b.) Being a guerilla, 214, 242. (c.) Crimes of violence, 243. Right of temporarv occupation, 244. History of the different views of military occupation, 245. Present view of occupation, 246. Rights of occupation, 247. Martial law, or the state of siege, how exercised, 247. Difference of opinion as to the meaning of the term " occu- pation," 250. Permanent occupation, 251. Retaliation in war, 251. Limitations upon the exercise of the right, 252. The termination of war, 253. Suspensions of hostilities truces, 253. (a.) Special traces, 253. What may be done during a special truce, 253. (6.) General truces, or armis- tices, 254. Treaties of peace, 255. In what respects different from ordinary treaties, 255. How executed, 256. When effective, 257. Their binding force, 256. Effects of treaties of peace, 257. (.) Upon the causes of the war, 257. (6.) Upon individuals, 257. (c.) Treatment of occupied ter- ritory, 258. The rules of maritime capture, 259. Their character and tendency, 259. Forces that may be employed in maritime war, 260. Prize, 260. Title to prize, in whom vest- ed, 261. Duty of captor, 261. Ransom of captured vessels, 263. Ransom contracts, 264. Hostages, 265. Recapture and postliminy, 266. Prize courts, 268. Jurisdiction of, 269. Law applied by, 270. Procedure in prize cases, 271. Right of appeal, 272. Rules for determining nation- ality of ships and goods, 272. THE END. 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